Wells v. Twin City Fire Ins. Co.

• Decision Date: 21 March 1960
• Docket Number: No. 42512,42512
• Citation: 239 La. 662,119 So.2d 501
• Parties: Jerry Don WELLS v. TWIN CITY FIRE INSURANCE COMPANY. Jerry Don WELLS v. AGRICULTURAL INSURANCE COMPANY.
• Court: Louisiana Supreme Court

Page 501

119 So.2d 501

239 La. 662

Jerry Don WELLS v. TWIN CITY FIRE INSURANCE COMPANY.

Jerry Don WELLS v. AGRICULTURAL INSURANCE COMPANY.

No. 42512.

Supreme Court of Louisiana.

March 21, 1960.

Rehearing Denied April 25, 1960.

Hall & Coltharp, DeRidder, for plaintiff-appellant.

Bienvenu & Culver, P. A. Bienvenu, New Orleans, for defendants-appellees.

HAMITER, Justice.

The instant litigation resulted from the total destruction by fire, during the early morning of February 16, 1954, of plaintiff's residence and attached garage, together with the contents thereof which consisted of household furnishings and a 1953 model Plymouth automobile. Each of two separate policies, one issued by the Twin City Fire Insurance Company and the other by the Agricultural Insurance Company, insured the house and garage for $4,000 and the household furnishings for $1,000 (a total of $10,000). A third policy, issued by the Lafayette Insurance Company, insured the automobile. At the time of the fire there existed a mortgage indebtedness on the house and garage of $3,893.68 and also one on the automobile of $1,705.80.

Because of the refusal by the respective insurers to pay the total loss claims three suits were instituted against them. The first was filed by the holder of the chattel mortgage note affecting the automobile to recover the unpaid balance due thereon. In the other two suits Jerry Don Wells demanded payment for the loss of his house, garage and household furnishings, together with interest, statutory damages and attorneys' fees.

In separate answers the defendants specially pleaded arson, they alleging that 'plaintiff fraudulently set fire to the insured property * * *.' The insurers of the mortgaged house and garage additionally averred that under the provisions of their respective policies each had paid the mortgagee $1,946.84 (one-half the mortgage indebtedness remaining); and in reconvention they prayed for judgment against the plaintiff in the amounts of such payments, with recognition of the special mortgage assigned to them.

All of the suits were consolidated and tried together, and at the conclusion of the trial the district court rendered separate judgments rejecting the several demands of the plaintiffs. It further decreed that the insurers of the mortgaged house and garage recover against plaintiff the amounts for which they respectively reconvened and that their special mortgage on the property be recognized.

From the two judgments relating to the insurance on the house, garage and household furnishings Jerry Don Wells (plaintiff in the suits and owner of such property) appealed to this court. The appeals were docketed here under one number and will be considered and discussed together. (Because of the amount involved in the automobile insurance case the appeal from the judgment rendered therein was lodged in the Court of Appeal of the First Circuit, and we are not now concerned with it.)

Plaintiff and the defendants agree, as is shown by the briefs of their respective counsel that the law governing cases of this nature is correctly enunciated in Sumrall v. Providence Washington Insurance Company, 221 La. 633, 60 So.2d 68, 69, as follows: 'Inasmuch as the defense is arson, the burden rested upon the insurer to establish, By convincing proof, that the fire was of incendiary origin and that plaintiff was responsible for it. It is well settled that the insurer need not prove its case against a plaintiff beyond a reasonable doubt; it suffices that the evidence preponderates in favor of the defense. Proof, of course, may be and invariably is entirely circumstantial. And, in these instances, a finding for defendant is warranted Where the evidence is of such import that it will sustain no other reasonable hypothesis but that the claimant is responsible for the fire. (Here numerous cases are cited.) Accordingly, the questions presented in matters of this sort are answered by the particular facts of the controversy. * * *' (Italics ours.)

Applicable here also are the following observations contained in Barbari v. Firemen's Insurance Company, 107 So.2d 480, 485 (a case decided by the Court of Appeal of the First Circuit and in which a writ of review, applied for by the defendant insurance companies, was denied by this court), to-wit: 'It would appear that mere suspicion is not sufficient to show that a fire was of incendiary origin, the facts from which inference or presumption are drawn, must be established in evidence and the inference or presumption to which these proven facts give rise, must be strong and almost inevitable. They must be weighty, precise and consistent.'

Accordingly, we must examine the facts of the instant case and determine whether they establish convincingly (1) that the fire was of incendiary origin and, if so, (2) that the plaintiff was responsible for it.

The circumstances relating to the discovery of the fire, as well as to the pertinent events which immediately followed, are not seriously in dispute. Residing in the dwelling when it burned were plaintiff, who was the owner thereof and then twenty years of age, his widowed mother, and his young brother Nathan, aged two years and ten months at such time. The house was situated in Rosepine, Louisiana, a small community on Highway 171 between DeRidder and Leesville. Facing west, it sat approximately 100 feet east of such highway, its longest side running parallel thereto in a north-south direction. The garage, located at the north end of the structure, was connected by means of a breezeway. The respective bedrooms of plaintiff and his mother (adjacent but separated by a solid wall and two clothes closets) were at the south end, that of Mrs. Wells being on the front (or highway) side and that of plaintiff to its rear. No door opened between the two rooms.

The fire was first discovered about 2:30 a.m., Tuesday, February 16, 1954, by John D. Cenci (a soldier stationed at Camp Polk near Leesville) and his wife who were passing on the highway and saw a flame in, and confined to, the garage. They stopped, and he walked toward the house; but on seeing someone in the breezeway, whom he could not identify as being plaintiff, he returned to the car to talk with his wife. Within a few minutes Edward L. Kaufman, who was driving a gasoline truck, also stopped to render assistance. Thereupon, the two men tried to arouse someone in plaintiff dwelling and, on failing to do so, went to a nearby house for the same purpose. When they returned to the burning structure and resumed heavy knocking plaintiff came from around its south end, being barefooted and clad only in pajamas, and called for help to rescue his mother. With him was his infant brother, Nathan.

Momentarily thereafter Kaufman carried Nathan to Mrs. Cenci, who had remained seated in the car on the highway, so that she might care for him. (There is a conflict in the testimony of Kaufman and Cenci as to whether the former received the small boy from the arms of Cenci or from those of plaintiff. However, this conflict, seemingly unimportant, is understandable in view of the prevailing excitement.) And during Kaufman's absence the plaintiff tore the screen from a window of his mother's bedroom and entered such room. Cenci followed him.

Cenci testified that on entering the room he saw Mrs. Wells on the floor, lying face down, and that his first thought was that she had been overcome by the smoke which was then very dense. He told plaintiff 'Here is a body'; whereupon plaintiff stated that 'Mother has killed herself and set the house on fire.'

Cenci attempted to assist plaintiff in removing Mrs. Wells through the window, but his assistance was of no avail. He was compelled to leave the room because of the density of the smoke. Nevertheless, plaintiff remained there, all the while calling for help. And Kaufman, on his return from the Cenci car, climbed through the window and successfully aided plaintiff in getting the body outside.

Later, the body was taken to DeRidder where an examination revealed that Mrs. Wells had been severely beaten about the head with a metal instrument and killed by the blows. The coroner set the time of her death at about 2:30 a.m.

Meanwhile, the infant Nathan was carried by Kaufman from the Cenci car to the home of Mr. and Mrs. Richard H. Evans, located across the highway from the burning structure. Plaintiff also went to the Evans home; however, a short time later he was taken, at the suggestion of relatives and friends, to a hospital in DeRidder for treatment.

In his assigned written reasons for the judgments rendered, the district judge stated in part: 'The defendants contend, and, of course, Wells denies, that he murdered his mother and set the fire in order to conceal the crime.'

Obviously the theory underlying such contention, that plaintiff first murdered his mother and thereafter set fire to the dwelling, had for its purpose the supplying of a motive for the alleged arson--the affirmative defense urged. In this connection, and no doubt in support of that theory, defendants introduced evidence in an effort to prove that plaintiff killed his mother for the reason that she had opposed his drinking and his staying out late at night. However, with reference to such defense theory and adduced evidence the district judge said:

'The many unexplained contradictions which resulted from Wells' testimony in regard to the circumstances pertaining to the murder, lead the Court to believe that his original plan did not contemplate the murder of his mother. * * *

'That Jerry Don Wells bore a good reputation in his community for honesty and peacefulness cannot be doubted, * * *.

'There was some testimony that he drank, but the most that can be said on that point is that he took a bottle or two of beer occasionally, and on one occasion, took one drink of whiskey. There is some testimony, by way of suggestion, that his mother had remonstrated with him about...