*1
E.
M.
and Charles
JOHNSON
JOHNSON
EXCHANGE
v. The TRUCK INSURANCE
Reid, Coleman, Burge, Prevallet & for appellee. Hays, Steele Appellants Charles and Justice. mother, Johnson, brought suit under their homeowners recover the stated value of a dwelling totally destroyed by fire on May Appellee 1982. insurer defended grounds on of misrepresentation, fraud and arson. $55,910.64, The jury returned a verdict notwithstanding an instruction that told them found for they the plaintiffs, their verdict the loss of the should be dwelling — insured $95,000. value the dwelling Both sides moved for judgment notwithstanding verdict and the court trial trial. On appeal the verdict aside and ordered a new
set we affirm. cross-appeal, a new trial
ARCP Rule lists the 59(a) grounds any part may including “on all issues” be granted, trial. The in the a fair preventing irregularity proceedings broad and court’s the rule is necessarily trial under power of abuse. will not disturbed the absence Bowlin, House v. 885 (1972); Finney, 252 S.W.2d 482 We find no abuse of discretion. instructed the
instruction cannot be reconciled. The court *3 for or effect that it must either find the defendant jury $95,000. In least clear a verdict for the of at plaintiffs return vote of 9 to 3 by of that instruction the a disregard jury $55,910.64, rationally a of cannot be returned verdict explained. court not it was for the trial
Appellants also
error
urge
a
to the
of the damages.
to order
trial limited
amount
partial
and where
decision is
with the trial court
discretionary
That
in the face of the
the verdict
is wholly incongruent,
on
the issues will not
instruction
a new trial
all
given,
of
the verdict
We
said as a matter
law
easily reversed.
have
Ark.
Cowger,
must be treated as an
v.
entity. McVay
276
decades,
our
for
That has been
rule
Appellants rely 544, 592 Arkansas Louisiana Gas Company, 267 S.W.2d but that case offers little The issue (1980), here. guidance involved a claim of where of similar negligence occurrences evidence of requires substantially the same General, similar conditions. Houston Arkansas supra; [See Johnson, Power and Co. v. Light (1976)]. other we noted that Reversing grounds,
no evidence was offered of circumstances and conditions the other to the one in surrounding explosions similar question.
A different situation is presented here. Charles Johnson was shown to have experienced four fires of a sort major within a span five years, at least three of which were insured loss against fire. by Unif. R. Evid. 401 defines relevant evidence as evidence having any tendency to make a *4 fact more or less probable. Where the issue is whether a fire was set insurance, to deliberately claim the existence of other fires, if not too remote in time or dissimilar circum- stances, may admissible without the showing same or substantially similar circumstances. Such evidence has relevance motive, intent, show mistake, absence of or accident. See Unif. R. of Evid. Unif. 404(b). R. Evid. 403 the requires trial court to decide whether that relevant evidence is such that its probative value the harm outweighs which its introduction might cause. There were other circumstances this jury could have found of probative a deliberate fire, of setting the as well as that proof Charles may have knowingly a false answer given when asked if similar insurance had ever been cancelled or (The 1 T. 237-238. record is silent concerning coverage on the automobile.) his declined; only that he first insured the dwelling name, own; have may given later his that adding mother’s of the as concerning occupancy dwelling answers her false wife; that few months as former occupancy by well from coverage fire he to increase the attempted prior $95,000; $105,000, $60,000 did secure an increase and. $12,500 behind that were and Charles and It be said to the Federal Bank. must Land payments and, we have of own as answered with their appellants said, evidence the jury it to determine which impossible is found preponderant. Accident and The case of Hammann Hartford Co.,
Indemnity 1980) Cir. (6th 620 F.2d instructive. a fire insurance suit to recover under Hammann brought to a barn. The insurer damage presented expert that fire started and intentionally to show the testimony of which had six fires over the four years, Hammann trial excluded in insurance recoveries. The judge resulted of fires did not recoveries evidence result surrounding evidence of circumstances permitted argued Hartford four fires insurance recoveries. yielding R. Evid. 404. admitted under Unif. evidence was properly value outweighed The Court of found the Appeals probative occurred: no of discretion abuse prejudice admitted Here the evidence of fires was properly prior Ham for a Defendant attacked number reasons: willfully mann’s that he had credibility by establishing fires from the defend concealed occurrences of several Second, the jury trial instructed ant. court properly as bearing only that the fires were to be considered Fire v. Niagara motive. See Terpstra Hammann’s Co., Insurance N.Y.S.2d N.Y.2d asserted defense Hartford Lastly, N.E.2d of Ham included evidence incendiarism which See, e.g., intent the occurrence. knowledge mann’s Company, v. Commercial Union Assurance Trice *5 1018, denied, 89 393 U.S. (6th 889 Cir. cert. 1968), F.2d 623, S.Ct. 563 21 L.Ed.2d Insurance
In St. Fire & Marine v. Paul Raphtis
475 Court of the (1972) Supreme 505 198 Company, N.W.2d of other the admission of evidence Dakota upheld South suit, this in a with comment: fires similar crimes of other are stated admissibility General rules of Evidence, most through Am.Jur.2d, 298 § § See evidence in actions. which deals with criminal Offenses, Am. also Arson and Related 58. 2d § Jur. intent, to show Evidence is admissible it tends motive, 2d, Evidence, scheme or Am. plan. 29 Jur. in nine months was Three fires 326. §§ held to show motive. a fire Generally
admissible case, is insurance where circumstantial evidence re- to, as sorted irrelevant are objections testimony favored, not and the evidence must take a necessarily broad Such evidence is to be received with range. caution, in this civil action no error yet we conclude occurred under this record.
Two Arkansas criminal cases In comparison. bear 82, 167 State, Casteel v. Ark. we held (1943), S.W.2d where the defendant was with arson charged burning insurance, of an automobile to recover had burned proof other cars for a reason In similar was admissible. Satterfield State, 337, 632 for the (1968), guidance S.W.2d 472 remand, of the trial court on we of other said evidence incidents of arson would not ordinarily admissible. However, noted, it should be proof “very meager, and the witness who single mentioned never [another fire] it, described never it did not located connect certainly Thus, the defendant with it.” for lack of failed proof connection to the defendant. trial,
Given the overall of the first we cannot proof say discretion was by abused of the evidence of reception other fires. on retrial at least the Assuming proof we are equivalent, not of the other willing say se, is so fires as to or lacking per relevance be inadmissible relevance is We have plainly by outweighed prejudice. recognized that the of evidence on acceptance rejection of relevance is of discretion. grounds a matter necessarily State, Hamblin 589 (1980); *6 476 State, 261, (1983). Ark.
Kellensworth v.
644
933
278
on direct appeal;
are made
Two additional arguments
directed
a motion
denying
the trial court erred
instructing
in favor
jury
of Laura Johnson
conduct, acts and
by
bound
that Laura
was
Johnson
of Charles
representations
Johnson.
to a
was entitled
argument
that Laura Johnson
she was
of proof
verdict is
on an absence
directed
predicated
cite Mechanics Insurance
of wrongdoing. Appellants
guilty
Co.,
Ins.
Co.
Intersouthern
v.
184
The order is appealed from affirmed.
Purtle, J., dissents. I. Purtle, Justice, I dissenting. respectfully John dissent from that of the part majority opinion which discusses the evidence to other fire relating losses experi- enced by Charles E. He was not with the charged Johnson. of responsibility causing other fires which destroyed in property which he held an interest. We held in Houston General Ins. Co., Co. v. Arkla Gas
445 (1980) that evidence of similar occurrences is admissible only when it is demonstrated that the events arose out of the same or substantially similar circumstances. In Houston we also held that the burden rests on the such party offering to evidence prove that the of necessary similarity conditions exists. There was no with this in attempt comply holding the case here under If consideration. the insurance carrier has evidence that Charles E. was the author of the Johnson losses, fire previous it should be allowed to introduce that However, evidence at next trial. fire fact that losses occurred on is, property which an interest Johnson itself, not evidence. It will proper necessary show that Charles E. set the fires or caused them be set Johnson Farmers Ins. in the is applicable. exclusion
before
224,
I is applicable believe the valued law this case.