*1 E. M. and Charles JOHNSON JOHNSON EXCHANGE v. The TRUCK INSURANCE 688 S.W.2d 728 84-230 of Arkansas Court Supreme 29, 1985 April delivered Opinion *2 Everett, Michael for appellants.

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 635 S.W.2d 249 but should not (see cases we Cowger), cited McVay contemplating of wording 59(a), overlook the Rule plain The partial new trials on the issues. rule only part permits of has been of the issues one or more trials those cases where of the be said That cannot resolved the verdict. clearly by right. was in this the trial court instance and will The other are moot but be discussed arguments of the court on retrial. guidance trial with ruling ask us to reverse Appellants evidentiary an fires. trial the intro- permitted other court respect of had three fires duction that Charles proof building one in of a prior question: burning business, the burning in which a operated grocery where the had lived and where dwelling a Johnsons wife was then operating beauty shop, Johnson’s brief a late model automobile. burning Appellants’ denies benefited these fires and whether they by from for the losses is not out. It is clear actually paid brought however, testimony, that there was insurance coverage on the these fires1. buildings destroyed by Co. on Houston General Insurance

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 43 S.W.2d 81 Life to is no defense that arson one co-insured (1931) urge by other, wrong. if of such a claim the the latter innocent by Co., Insurance Richardson Hanover (Ga. v. S.E. 299 2561 Co., 1983); Fuston v. N.E.2d National Mutual Insurance Co. St. Paul Fire &Marine Insurance (Ind. App. 1982); American Molloy, (1981); Md. A.2d 136 (Ind. Insurance Co. Economy Liggett, 426 N.E.2d Right “Insurance Law: Innocent 1981); Spouse’s App. Cases,” Rev. Forest L. Recover Arson 17 Wake For one will that issue here. We not settle attempt her inno- from the consideration thing, apart separate arson, concluded could have jury cence with respect in the first instance this would not have been issued Johnson, for himself and Laura Charles Johnson, acting the cancellation truthful answers given concerning another, not reflect For this record does similar insurance. judge to the trial an instruction appellants presented We are ARCP Rule 51. this issue on which preserved appeal. therefore, the trial such that was say, unable for Laura to direct a verdict court obliged Johnson. Co. v. Henley, Farm Bureau Mutual Insurance 301 (1982). erred instructing do we think the trial court Nor handled all testified that he as it did. Charles jury of Laura approval insurance with the affecting the affairs in his hands. She entirely that she left these matters Johnson, was placed, know the coverage did not with whom amount of (which coverage, premium amount Her else paid), concerning coverage. Charles anything nowhere refutes the of Charles testimony testimony *7 short, say this issue. In we the trial court should on cannot on of testimony. not have the instruction the basis the given asserts there was no substan- By cross-appeal appellee in tial evidence to of favor support any appellants. The willfully is that Charles argument generally Johnson for facts the concerning application concealed material his insurance. We concede there are in some of discrepancies answers, but we are not to substitute our view prepared of that the trial of of a trial on the basis record judge printed three The trial we lasting days. hears the witnesses and judge in of recognize the advantage passing weight Puckett, evidence. Garrett

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, 650 S.W.2d 244(1983). 8 Ark. Exchange Staples, App. relevant unless it were losses not be such would Certainly from them. pecuniary gain that received shown is such in the record. There no evidence present issue is whether a fire state: “Where the majority insurance, of other set existence deliberately claim fires, too or dissimilar circum- not remote time stances, be admissible without same may showing This is not similar statement circumstances.” substantially I am of the opinion by any type authority supported it out the air. simply pulled E. delib- Even if it were that Charles provén *8 set insurance company fire to this erately property, M. the face still would be obligated pay she an that No one policy. disputes amount that her son obtain insurable interest. The fact she asked intention on her any in no reflects the insurance manner fire. to be destroyed by cause part property State, In 432 S.W.2d Satterfield arson, we with stated: where a person charged (1968), of arson would not “Evidence of other incidents to meet the test unless that evidence can be shown admissible court then cited decisions.” The many announced Alford State, (1954) approved which shows from follows: as language “[E]vidence C.J.S. another crime or tends show that accused has committed with, of, and unconnected wholly independent trial, of the same it is a crime even though sort, is irrelevant and inadmissible.” faqts to the

I is applicable believe the valued law this case.