Cruce v. Auto-Owners Mutual Insurance Co.

851 S.W.2d 10, 1993 Mo. App. LEXIS 345, 1993 WL 58618
CourtMissouri Court of Appeals
DecidedMarch 9, 1993
DocketNo. WD 45571
StatusPublished
Cited by6 cases

This text of 851 S.W.2d 10 (Cruce v. Auto-Owners Mutual Insurance Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cruce v. Auto-Owners Mutual Insurance Co., 851 S.W.2d 10, 1993 Mo. App. LEXIS 345, 1993 WL 58618 (Mo. Ct. App. 1993).

Opinion

ULRICH, Presiding Judge.

Auto-Owners Mutual Insurance Company (Auto-Owners) appeals from an adverse judgment following a jury verdict in an action brought by Betty Cruce to recover under the fire insurance provisions of two separate policies issued to her by Auto-Owners. Auto-Owners contends that the trial court erred in overruling Auto-Owners’ motion for a new trial because the trial court (1) admitted inadmissible and otherwise irrelevant hearsay into evidence by allowing a witness to testify as to the out-of-court statements of another witness, and (2) permitted a witness to take the stand solely for the purpose of having the jury hear him invoke his fifth amendment privilege against self-incrimination. Point (2) is dispositive. However, because of the connection between points (1) and (2), and because both points may otherwise be issues during retrial, both points are addressed. Additional points raised by Auto-Owners are not addressed. The judgment is reversed. The case is remanded for retrial.

In April 1984, Betty Cruce purchased The Folly Restaurant in Lexington, Missouri. Thereafter, Ms. Cruce insured the restaurant with Auto-Owners under two separate policies. Under one policy, the building was insured for $60,000 and the contents were insured for $45,000. Under a second policy, a Lowry organ Ms. Cruse had purchased after she bought the restaurant was insured for $13,500.

On February 10,1987, fire destroyed The Folly Restaurant and its contents. A fire investigator hired by Auto-Owners concluded the fire was of an incendiary origin and had been intentionally set.

In March 1987, Ms. Cruce filed a sworn proof of loss statement with Auto-Owners. In the statement, Ms. Cruce listed the actual damage and loss to the restaurant and its contents as $280,000, the actual cash value of damage at the time of the fire, and made a claim under the policy for $105,000, the policy coverage limit.

In a letter dated August 6, 1987, Auto-Owners denied Ms. Cruce’s claims because the company believed that Ms. Cruse either caused or contributed to cause the February 10,1987, fire. Ms. Cruce then filed the underlying action to recover under the fire insurance provisions of both policies issued to her by Auto-Owners. In her two-count petition, Ms. Cruce sought $60,000 for the loss of the building and $45,000 for the loss of the contents, plus interest, under the first policy, and $13,500 for the loss of the Lowry organ, plus interest, under the second policy.

The case was tried before a jury, which, on September 20, 1991, returned a verdict in favor of Ms. Cruce on each of her claims against Auto-Owners.1 On the policy for the contents, the jury awarded Ms. Cruce $45,000 plus “$26,146.00 est. 9% int.,” and on the policy covering the organ, the jury awarded her $13,500, together with “$6,285.00 est. 9% int.” The trial court accepted the jury’s verdicts and entered judgment awarding Ms. Cruce $45,000 plus nine percent interest from April 2, 1987, and $13,000 plus nine percent interest from May 2, 1987. Auto-Owners filed an “Alternative Motion for New Trial and/or Judgment Notwithstanding the Verdict, and/or Remittitur” on October 7, 1991, which the trial court subsequently overruled. Auto-Owners now appeals.

I.

Auto-Owners contends as its first point on appeal that the trial court erred in [12]*12overruling its motion for new trial because the trial court wrongly admitted “inadmissible and otherwise irrelevant” hearsay evidence by permitting witness Jane Soendker to testify as to the out-of-court statements made by Larry Dean Pointer. Mrs. Soendker, a learning disabilities teacher at the Lexington Middle School, related to the jury two conversations she had with Mr. Pointer when he was her student wherein Mr. Pointer allegedly predicted The Folly Restaurant would burn and later implied that he had “beaten” a polygraph examination administered to him by police officers investigating the fire.

When Mrs. Soendker was called to the stand to testify, counsel for both Ms. Cruce and Auto-Owners immediately approached the bench. During the bench conference out of the hearing of the jury, counsel for Auto-Owners stated that the only testimony Mrs. Soendker could give was hearsay and that he objected to her testimony. The trial court dismissed the jury and held proceedings in chambers. In lengthy discussions on the record, Auto-Owners objected vigorously to any testimony Mrs. Soendker might give regarding the two conversations with Mr. Pointer. Auto-Owners objected on the grounds that the testimony would be inadmissible hearsay and irrelevant. The trial court directed that Mrs. Soendker testify in chambers before any rulings would be made.

Mrs. Soendker was questioned in chambers by both parties. After her testimony and the subsequent argument by both attorneys, the trial court stated that it intended to allow Mrs. Soendker to recount to the jury Mr. Pointer’s statements because such testimony was not hearsay. The trial court believed the statements were not offered to prove the truth of the matter asserted and were admissible to prove the state of mind of the declarant, Mr. Pointer. The trial court specifically noted to counsel for Auto-Owners, “[Ojbviously, you have made your record on your objection, and you can renew it when and if the witness testifies in court.”

The trial court returned the proceedings to open court. Mrs. Soendker was called to the stand and testified before the jury. Through the questions of counsel for Ms. Cruce, Mrs. Soendker related Mr. Pointer’s statements which he made during her conversations with him without a single objection by Auto-Owners.

An out-of-court statement offered to prove the truth of the matter asserted is the classic definition of hearsay, and the hearsay rule excludes hearsay testimony absent a recognized exception. State v. Green, 575 S.W.2d 211, 212 (Mo.App.1978). The principal objection to hearsay testimony is the inability of an opponent-party to cross-examine the person to whom the hearsay statement is attributed. Dryden v. Aitken, 405 S.W.2d 925, 928 (Mo.1966).

Mrs. Jane Soendker’s relevant testimony before the jury was as follows:

(Questions by Mr. Hockemeier, counsel for Ms. Cruce).
Q. Now, what do you teach?
A. I teach learning disabilities.
[[Image here]]
Q. All right. Did you ever have a student by the name of Dean Pointer?
A. Yes, I did.
[[Image here]]
Q. Do you remember The Folly fire, The Folly Restaurant fire?
A. I remember being told about it.
Q. All right. And is there a reason that you remember that fire?
A. Yes. Dean told me the day before that The Folly would probably burn. Well—
Q. All right. You wanted to say something different?
A. I think I didn’t say that quite like he told it. He said, “Mrs. Soendker, what would you say if I told you that The Folly was going to burn and then it' did?” And I said, “That would be quite a coincidence.”
[[Image here]]
Q.

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Bluebook (online)
851 S.W.2d 10, 1993 Mo. App. LEXIS 345, 1993 WL 58618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cruce-v-auto-owners-mutual-insurance-co-moctapp-1993.