Appellee sued appellants for damages, both compensatory and punitive, to compensate an injury sustained by her as the result of the loss by fire of her home and its contents. She alleged that appellants had hired one Stray Waddell to burn her house in order that they might collect the insurance thereon and apply it to the debt due them by appellee. She recovered judgment for $500 compensatory, and $300 punitive, damages, and this appeal has been prosecuted to reverse that judgment.
A reversal is asked upon four grounds. First, that the evidence is insufficient to sustain the verdict of the jury. Second, that an erroneous instruction was given on the measure of damages. Third, that incompetent evidence was admitted. Fourth, that prejudicial error was committed by the court in permitting counsel for appellee to make certain remarks in the presence of the jury and certain statements in his closing argument. We will discuss these assignments of error in the order stated.
It is earnestly insisted that the evidence does not support the verdict. That it is sufficient only to arouse a suspicion of appellants’ guilt, and that a satisfactory explanation was offered by appellants of the incriminating circumstances. Appellants denied the offense charged with great vehemence, and offered explanations of the various circumstances offered in proof in support of the charge of guilt. Had these explanations been credited by the jury, a verdict could not have been returned against appellants. Manifestly, however, these statements were not accepted, and it remains only to determine whether the evidence against appellants, when given its highest probative value, together with all inferences reasonably deducible therefrom, is legally sufficient to support the verdict.
This evidence may be summarized as follows: Appellee purchased from J. H. Hall a house and lot in the city of Hot Springs, on May 23, 1911, for the consideration of $1,700. In payment therefor, she conveyed to Hall a 160-acre tract of land, which was treated as a cash payment of $500, and she executed twenty promissory notes, each for $60, one to become due every six months, and all to bear interest at the rate of 8 per . cent, per annum, from date until paid; but there was a verbal agreement that, if she could make her payments at the rate of $10 each per month, no interest should be charged. There was also an agreement that appellee should keep the property insured, and that the policy should be made payable to appellant J. H. Hall as his interest might appear, and, pursuant to this agreement, appellee took out two policies, for $500 each, with loss payable to Hall. Five of the purchase money notes had been paid, leaving a balance of $900, exclusive of interest, when appellee defaulted in her payments. Upon complaint of this fact being made to appellee, who is a colored woman — by Hall, she explained her default by saying that she had been unable to secure roomers for her house, when Hall asked if she would furnish rooms to white men, and she stated she would do so, and Hall promised to assist her in securing white men to take her rooms. A few days later, a crippled white man named Stray Waddell, applied to appellee for a room. This man was a notorious police character, and had served more than one term in the penitentiary. He had a piece of paper in his hand, upon which appellee’s name and street and telephone number were written, and this street number was “3,” a number used only by appellant, as he had four or five cottages on the same lot, all of which were given the same street number by appellant. Appellee’s number appeared in the telephone directory as No. 4, but appellants had never recognized this number. Appellee asked Waddell if Hall had sent him to her, and received a negative answer. Waddell was accepted as a lodger, and went away promising to return the next day, but he failed to do so. On the night of the next day, an attempt was made to burn the house, but the fire was discovered before it had gained much headway, and a fire company which* arrived promptly extinguished the fire before much damage had been done. The evidences of an incendiary origin of the fire were so patent that the insurance companies undertook to cancel the policies, but Hall demanded the five days ’ notice provided for by the policies, and, in discussing this first fire with appellee, Hall told her she would have made money if she had let the house burn. Two days after the first fire, Waddell returned and occupied his room. The next morning appellee left early for her work, and a short time afterward Waddell was seen leaving the house, and as he left he was observed to stop and look back, and in a very short time flames burst through the windows and the roof. A short distance away Wad-dell met a party who told him the house was burning, but Waddell made an indifferent remark and proceeded on his way.
W. H. Hall and appellee had a conference just after the fire, and upon Hall’s advice appellee reported the occurrence of the fire to the chief of police. When she had given a description of her lodger to the chief of police, that officer said the man she had described was Stray Waddell, whereupon Hall insisted that such was not the case, and assigned as a reason for his definite opinion that Waddell was not the man described, the fact that the neighbors near the scene of the fire had given a description of the lodger which did not describe Waddell. The Halls were dealers in second-hand goods, and they admit their introduction to Waddell consisted in the purchase from him of a handbag which proved to have been stolen, and was reclaimed by the owner before the fire. The Halls explained, however, that they were unaware of the fact that the bag had been stolen. Hall admits that Wad-dell pawned clothes with him on several occasions after the fire. It was shown that Waddell had no money on the day before the fire, while on the morning of the fire he had at least two ten-dollar bills, and some change. Hall testified at the trial of this cause that he did not believe Waddell was the man described by appellee because, on the morning of the fire, Waddell was at his store, and, crippled as he was, he could not have walked from the scene of the fire to Hall’s place of business between the time of the fire and the time Waddell was at Hall’s store. Hall testified that he changed a ten-dollar bill for Wad-dell, and the inference is that this was done about the time the fire was raging. Appellee’s house was about one and a half miles distant from appellant’s place of business; but street cars ran from near the house to appellants ’ store. It is appellee’s theory that this evidence was false and was the proof of an alibi which had been arranged.
A witness testified that, while the house was burning, and before the fire department had arrived, J. H. Hall, who was at his place of business one and a half miles away, called over the phone and inquired about the fire, and, upon being told that it was the house of appellee, was heard to laugh. W. H. Hall testified that he was the party who talked with this witness over the telephone, and that he had learned of the fire from a man named Smith, who told him that smoke was boiling up over the mountain in the direction of the property.
A witness named Heskett, who ran a saloon which Waddell frequented, testified that Waddell had been loitering around his saloon without any money prior to the fire, and that on the morning of the fire, Waddell came into the saloon and bought drinks for himself and the crowd then present, and had asked the witness and some others to take breakfhst with him, whereupon he remarked to "Waddell, “You seem to be flush today,” and Waddell said, “Yes, I made $50 last night, and I will have $25 more as soon as I can go down to Hall’s; he owes me $25 yet,” and that witness and some others ate with Wad-dell, who paid for the meal. Hall was not present, and an objection was made to this statement about the transaction with Hall, which objection was sustained and the jury was told to disregard that statement.
It was shown that suits were brought against the insurance companies, in which appellee and the Halls were joined as plaintiffs, and that a judgment was recovered in each case for $500, the face of the policy, and for an attorney’s fee of $100, and the statutory penalty. It was shown, however, that, notwithstanding the fact that J. H. Hall had collected this judgment, he had credited appellee’s account with the sum only of $1,000, and did not pay her any part of the penalty, and had brought suit against her to foreclose their vendor’s lien for an alleged balance of $508.61 of purchase money.
In this connection, it may be said that appellants insist that the fire was not profitable to them. But appellee insists that the money which they received, and the money which they expected to receive as a result of the suit to foreclose the vendor’s lien securing the balance of the unpaid purchase money, made the fire more profitable than the receipt of payments of $10 per month would have been. This was a matter of defense, however, which was submitted to and has been passed upon by the jury.
There are a few other circumstances discussed in the briefs which tend, on the one hand, to incriminate, and, on the other, to exculpate, which would cause this opinion to be unduly protracted if they were discussed.
"We need not consider here the right of subrogation in favor of the insurance companies, as the record does not present that question. But the law of that subject is discussed in the case of Illinois Cent. R. R. Co. v. Hicklin, 23 L. R. A. (N. S.) 870 (Ky.), 115 S. W. 752. And in the note a large number of cases are cited. See, also, Railway v. Fire Ins. Assn., 60 Ark. 332; Railway Co. v. Fire Assn., 55 Ark. 163.
And, in his concluding argument, counsel for appellee said, “W. H. Hall, is one of the slickest men in Arkansas, and his old father there is no better. If he would turn his talent in the right direction, he might make a useful citizen.” Objection was made to this statement, whereupon the court said, “Counsel is only giving his opinion,” and the attorney replied, “I insist that the evidence shows my statement to be true. ’ ’ The court refused to tell the jury to disregard the remark, or to reprimand the attorney for making it, to which action an exception was duly saved.
The first remark appears to have been provoked in a measure, at least, by the statement of appellants’, counsel that, “If what counsel for plaintiff had said was true, Tessie Jones ought to have another attorney.” Such remarks are always improper, as they tend to divert the attention of the jury from the consideration of the evidence and to inject into the case irrelevant matter, which the jury might consider as well as, or even instead of, the evidence. But one should not invite this practice by indulging in it himself, and then complain that adversary counsel had followed his lead. Caddo River Lbr. Co. v. Grover, 126 Ark. 449, 190 S. W. 560. The court sustained the objection of counsel and directed the jury to disregard the remark of counsel and to consider only the evidence in the case; and we think, under the circumstances, this admonition cured the prejudice, if any, resulting from the remark.
Finding no prejudicial error, tbe judgment of tbe court below is affirmed.