Terrell v. Poland, CF10289
| Decision Date | 26 September 1984 |
| Docket Number | No. CF10289,No. 83-2430,A,CF10289,83-2430 |
| Citation | 744 F.2d 637 |
| Parties | 16 Fed. R. Evid. Serv. 818 Ida Mae TERRELL and Archie Terrell, Appellants, v. John Michael POLAND, Underwriter at Lloyd's of London Subscribing to Policyppellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
W. Frank Morledge, P.A., Forrest City, Ark., for appellants.
Laser, Sharp & Huckabay, P.A., Little Rock, Ark., for appellee.
Before BRIGHT, JOHN R. GIBSON and BOWMAN, Circuit Judges.
Ida Mae and Archie Terrell appeal from a jury verdict denying them recovery under a fire insurance policy for losses they sustained when their place of business was destroyed by fire. For reversal the Terrells argue that the District Court 1 committed reversible error when it denied their motion to strike as hearsay a written statement made by a woman who reported that she saw the Terrells removing furniture from their place of business shortly before the fire. We affirm.
From 1972 through 1980 the appellants owned and operated a nightclub in Brinkley, Arkansas which was insured against fire loss by Lloyd's of London. In April 1980 Ida Mae Terrell obtained a $40,000 loan from the Small Business Administration for the purpose of renovating the nightclub. The loan was secured by a mortgage on the business premises and a security interest in the furniture, fixtures, equipment, inventory, and accounts receivable then owned or thereafter acquired for use in the business. The loan agreement also required that the SBA be designated loss payee under the fire insurance policy.
On August 18, 1980, at approximately 2:00 a.m. a fire began at the Terrells' nightclub and resulted in a total loss. The Terrells thereafter defaulted on the loan and the SBA brought a foreclosure action in the District Court. The Terrells filed a cross-complaint against Lloyd's of London for the proceeds of the fire insurance policy and Lloyd's pled arson as an affirmative defense.
The question of the Terrells' and Lloyd's liability to the SBA was tried to the court which entered judgment against the Terrells in the amount of the outstanding indebtedness, $36,371.85, and ordered Lloyd's to pay the SBA $35,000 as loss payee under the insurance policy.
The question of the Terrells' and Lloyd's respective rights was submitted to a jury which accepted Lloyd's allegations of arson and returned a verdict against the Terrells. The court then entered judgment in Lloyd's favor against the Terrells for $35,000. This appeal followed.
The Terrells now argue that the District Court committed reversible error when it denied their motion to strike as hearsay a written statement made by a woman who reported to the Brinkley Fire Department that she saw the Terrells removing furniture from the nightclub two weeks before the fire. During the trial Lloyd's introduced this statement together with an investigative report prepared by the Brinkley Fire Department as Exhibit 11. When the exhibit was introduced the Terrells' trial attorney did not object to the statement. However later at the close of evidence he made a motion to strike the statement as hearsay, and in response the court stated:
Well, of course, I can hardly go back. The case is closed. I mean this was received ... You know, I probably would have stricken this if you'd called my attention to it but I received it without objection so I don't really have any choice about that. I wish I could give you some relief, but we rested at that point and it's in evidence according to the record and the record is closed and no objection was made to it.
Rules 103(a)(1) and 103(d) of the Federal Rules of Evidence govern our standard of review in deciding whether a District Court committed reversible error by admitting evidence. Those rules state:
(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context ....
(d) Plain error....
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