United States Fire Insurance Co. v. Dace

305 N.W.2d 50, 1981 S.D. LEXIS 261
CourtSouth Dakota Supreme Court
DecidedApril 29, 1981
Docket13137
StatusPublished
Cited by18 cases

This text of 305 N.W.2d 50 (United States Fire Insurance Co. v. Dace) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States Fire Insurance Co. v. Dace, 305 N.W.2d 50, 1981 S.D. LEXIS 261 (S.D. 1981).

Opinions

HENDERSON, Justice.

ACTION

This is an appeal by Troy Dace (appellant) from a judgment entered pursuant to a jury verdict rendered in favor of United States Fire Insurance Company (appellee). Appellee instituted an action for declaratory judgment contending that appellant was not entitled to recover $50,000 under a fire insurance policy issued to him by appellee. Specifically, the jury found that appellant had violated the terms of the policy by setting, or causing to be set, the fire which destroyed the insured building. We affirm.

FACTS

The insured building, destroyed by fire, was purchased on a contract for deed by appellant in May of 1978 from Amby Friel and his wife, Margaret Friel. Prior to that time, appellant had been leasing the building from the Friels. As a part of the purchase agreement, appellant was required to insure the building to protect the Friels’ interest. Appellant complied by purchasing a $50,000 fire insurance policy from appel-lee in May of 1978 with a proper loss-payable clause for the Friels. According to an insurance agent employed by appellee, appellant had, however, originally requested a policy of $110,000. Appellant testified at trial that the building had been appraised at $55,000 to $60,000.

At the time of this purchase, appellant was using the building for a nightclub, pawn shop, and bookkeeping/tax consultation service. In October of 1978, appellant leased the nightclub portion of the building to Mark and Judy Javersak. The Javersaks originally purchased a $110,000 insurance policy on their portion of the building, including its contents. When the Javersaks bought the nightclub, the contents therein were owned by appellant; hence, appellant wanted them insured in his name, since the Javersaks did not really own the contents of the nightclub, but-were merely making periodic payments on them. Accordingly, if a fire occurred, appellant would sustain a substantial loss as, for all practical purposes, he still owned the nightclub and its contents. Approximately two weeks prior to the fire, an additional $20,000 insurance was placed on the building and its contents by the Javersaks. Appellant was named the insured on the resulting $130,000 policy.

During the early morning hours of January 28,1979, the building in question caught fire and was destroyed. Appellant, on the night of January 27, 1979, had gone to a movie and dinner in Rapid City, South Dakota, with Brett Horr, whom appellant had recently met while performing as a sharpshooter for students at Sturgis High School. Horr was approximately 14 years old at this time. The two returned to appellant’s trailer home in Spearfish, South Dakota, at approximately 1:00 a. nj. on the 28th of January, 1979, and thereafter retired to separate bedrooms.

Patricia Hoffman, a waitress who was working in a diner near the building, testified that she called appellant at approximately 6:00 a. m. on January 28, 1979, and told him “your place is on fire.” According to Hoffman, appellant stated he would be right down, that being the extent of the conversation.

Appellant testified that when Hoffman called, he put the telephone receiver down and checked to see if his trailer was on fire; he also looked in on Horr, but did not wake him at this time. Appellant further testified that he stepped outside the trailer, [53]*53while still talking on the telephone via an extension cord, to again check to see if his trailer was on fire. According to appellant, after realizing that it was the nightclub/pawn shop/tax building which was ablaze, and still not dressed, he wakened Horr. Appellant testified that while Horr was dressing, he went out and started his pickup truck to warm it up, then came back in. He and Horr subsequently drove to the fire.

Horr, on the other hand, testified that when appellant awoke him, appellant was fully dressed (including a coat) and it was wet where appellant had been standing. Furthermore, Horr testified that when he and appellant left the trailer, he noticed a trace of snow on the ground which was not present when the two had arrived at the trailer.1 Horr testified that, while there was snow on the other surrounding vehicles, there was no snow on appellant’s pickup truck. Additionally, Horr testified that he was positive appellant’s pickup truck was not running when he and appellant entered it. The heater of the pickup truck came on in five to ten seconds, Horr testified, even though he thought the temperature outside was approximately 0° fahrenheit. According to Horr, the tire tracks of the pickup truck indicated that it had left the trailer, returned, then left and returned again.

Subsequent to the fire, appellee paid Margaret Friel approximately $51,000 for the damage done to the insured building, and assumed appellant’s contract for deed (permissible if arson is suspected) to avoid paying appellant due to appellee’s belief that appellant had committed arson. Ap-pellee then commenced this action by seeking a declaratory judgment against appellant.

ISSUES

I.

Was there sufficient circumstantial evidence presented to the jury to support its verdict? Our holding is yes.

II.

Did the trial court err by receiving into evidence certain out-of-court statements made by appellant as exceptions to the hearsay rule? Our holding is no.

III.

Did the trial court err by receiving into evidence the non-expert opinion testimony of Brett Horr? Our holding is no.

DECISION

Appellant contends that the evidence was insufficient to support the jury’s verdict. Upon this Court’s review of the sufficiency of the evidence on appeal, the evidence and the inferences therefrom are viewed in the light most favorable to upholding the verdict of the jury. Olesen v. Snyder, 277 N.W.2d 729 (S.D.1979); Engberg v. Ford Motor Company, 87 S.D. 196, 205 N.W.2d 104 (1973). If, when so viewed, there is competent and substantial evidence to support the jury verdict, then it must stand. Olesen v. Snyder, supra; Vander Vorste v. Northwestern National Bank, 81 S.D. 566, 138 N.W.2d 411 (1965); Bentz v. Cimarron Insurance Co., 79 S.D. 510, 114 N.W.2d 96 (1962).

Appellee relied solely upon circumstantial evidence as a basis for proving that appellant committed arson. Proof of arson may be established, however, by circumstantial evidence. Raphtis v. St. Paul Fire & Marine Insurance Company, 86 S.D. 491, 198 N.W.2d 505 (1972); Quast v. Prudential Property & Cas. Co., 267 N.W. 2d 493 (Minn.1978). Appellee was required to prove by a preponderance of the evidence that appellant caused the building to burn. Raphtis v. St. Paul Fire & Marine Insurance Company, supra; Quast v. Prudential Property & Cas. Co., supra.

[54]*54The jury was presented with two questions: 1) Was appellant’s building deliberately set on fire on January 28, 1979?; and 2) Did appellant set, or cause to be set, the fire?

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United States Fire Insurance Co. v. Dace
305 N.W.2d 50 (South Dakota Supreme Court, 1981)

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Bluebook (online)
305 N.W.2d 50, 1981 S.D. LEXIS 261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-fire-insurance-co-v-dace-sd-1981.