author: WANGELIN, District Judge.

text:
    Denise ERWIN, Plaintiff, v. STATE FARM FIRE & CASUALTY COMPANY, Defendant.
    No. S84-0101C (D).
    United States District Court, E.D. Missouri, Southeastern Division.
    Sept. 19, 1985.

      Charles Sampson Williams, Welman, Beaton, Williams & McVey, Kennett, Mo., for plaintiff.
    Donald R. Morin, Brinker, Doyen & Kovacs, P.C., Clayton, Mo., for defendant.
   MEMORANDUM

WANGELIN, District Judge.

This matter is before this Court upon defendant’s motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.

In regard to judgment notwithstanding the verdict, the Court must consider the evidence in the light most favorable to the prevailing party. McGee v. South Pemiscot School Dist. R-V, 712 F.2d 339 (8th Cir.1983). Moreover, the Court must assume that the jury resolved all conflicts of evidence in favor of the prevailing party. Id. Finally, the Court must assume as true all facts which the prevailing party’s evidence tends to prove, give the prevailing party the benefit of all favorable inferences which may be reasonably drawn from proved facts, and deny the motion if, in light of the above, reasonable jurors could differ as to the conclusions that could be drawn from the evidence. Id. Consequently, motions for judgment notwithstanding the verdict should be sparingly granted. Cleverly v. Western Elec. Co., 594 F.2d 638 (8th Cir.1979).

In the present case defendant contends that the verdict in its entirety was against the weight of the evidence. The case involved plaintiff’s claim under an insurance policy with defendant. Plaintiff’s house burned and defendant refused to pay claiming arson on behalf of plaintiff. The jury returned a verdict in favor of plaintiff and defendant now seeks judgment notwithstanding the verdict or, in the alternative, a new trial.

Defendant claims that plaintiff produced no evidence at trial to counter defendant’s proof that the fire was of incendiary origin. Defendant further claims that, by circumstantial evidence, it proved by a preponderance of the evidence, that plaintiff was responsible for the fire by her own act.

The circumstantial evidence relied upon by defendant was that plaintiff was in debt and had a peculiar reaction to the fire. However, the mere fact that a person is in debt, even extreme debt, is not sufficient to support a defense of arson. Graves v. MFA Mutual Insurance Co., 446 S.W.2d 154, 158 (Mo.App.1969). Moreover, the fact that a fire is of incendiary origin does not overcome the presumption that people are honest and actuated by correct motives. Morris v. Reed, 510 S.W.2d 234, 241 (Mo.App.1974). Beyond the foregoing, evidence was admitted that State Farm did not know the “acts, design or method used to start the fire.” Additionally, defendant did not know the name of any person having such knowledge. ' Moreover, defendant’s claim committee report affirmatively stated that plaintiff was three hundred (300) miles from the fire at the time it started and that no time delay device was found in the debris of the fire. Finally, James Politte was unable to explain the factual basis upon which he considered plaintiff’s reaction peculiar. Based upon the foregoing evidence, it is very conceivable that reasonable minds could differ as to whether plaintiff started or had someone else start the fire and, thus, judgment notwithstanding the verdict is inappropriate.

Defendant next contends that a penalty for vexatious refusal to pay a claim should not be imposed unless the facts and circumstances surrounding the refusal to pay a claim show that it is willfull and without reasonable cause. It is clear that an insurer may question and contest an issue of fact relating to its liability if it has reasonable cause to believe, and does believe, that there is no liability under its policy. Groves v. State Farm Mutual Automobile Insurance Co., 540 S.W.2d 39 (Mo. en banc 1976).

Defendant’s reasonable belief that it had no liability under the policy apparently was based upon a conversation between Mac Smith and Elbert Perry where Perry told Smith that Tom Butler contracted with Perry to burn plaintiff’s house for profit. However, for purposes of vexatious refusal to pay, the finder of fact may consider only the facts as they appeared at the time of the refusal to pay.

“What facts were developed at the trial does not affect the matter, either for appellant or against it. A refusal to pay when payment is due is not a vexatious refusal if founded on what at the time appeared to be facts justifying the refusal even though at the trial if may be shown that the true facts were exactly the opposite of what had first they appeared. Conversely, a refusal to pay is vexatious if founded not upon what appear to be facts but only on a possibility that later investigation may develop facts justifying refusal to pay, even if such further investigation does develop such facts. The facts as developed may defeat recovery altogether and, if so, of course they will incidently defeat recovery of damages for vexatious refusal to pay; but if an insurance company desires to defeat recovery of damages for vexatious refusal to pay even although it may fail to defeat recovery on the contract of insurance, it must show that at the time it should have paid under the contracts the facts as they then appeared justified that refusal.”

Buffalo Insurance Co. v. Bommarito, 42 F.2d 53, 57 (8th Cir.1930). The Eighth Circuit again addressed this issue in Storhaug v. State Farm Fire and Casualty Co., 747 F.2d 443 (8th Cir.1984). Although vexatious penalties were denied, the Court found that:

“The finder of fact should make this determination not according to the ultimate disposition of the claim but on the facts as they appeared at the time of the refusal to pay. Katz Drug Co. v. Commercial Standard Insurance Co., 647 S.W.2d 831, 839 (Mo.App.1983).
At the time of refusal, State Farm did not appear to have a vexatious or recalcitrant attitude.”

Storhaug, supra 747 F.2d at 444.

In the present case plaintiff complied with the terms of the policy such that payment was due on November 18, 1983 and the letter of denial from defendant was dated March 26, 1984. The conversation which defendant uses as the reasonable basis for its refusal to pay did not take place until October 16, 1984. Thus, the conversation could not form the reasonable basis for defendant’s refusal to pay and the jury was justified in finding that defendant had no reasonable belief that it had no liability under the policy at the time payment was due.

Defendant also contends that refusal to admit Mr. Smith’s conversation with Mr. Perry concerning a previous conversation between Mr. Perry and Mr. Butler was in error and, thus, a new trial is merited. This simply is not the case.

The Court did not err in prohibiting State Farm’s witness, Mac Smith, from testifying as to an alleged conversation with Elbert Perry and in refusing to admit State Farm’s Exhibit “E”. Exhibit “E” was a two-page exhibit setting out the details of the alleged conversation. The exhibit as offered contained various phrases that were underlined in an obvious attempt to highlight those portions of the exhibit. Such underlining is more prejudicial than probative and this Court properly excluded the exhibit.

Further, Mr. Smith could not testify as to the conversation between Mr. Perry and Mr. Butler. Such testimony would be double hearsay. Defendant contends the testimony is admissable under Rule 803(24) Fed.R.Evidence which provides:

A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advanee of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

Defendant’s Exhibit “E”, which Mac Smith wrote concerning his conversation with Elbert Perry, set out that Perry told him that plaintiff had no knowledge concerning who started the fire or why it was started. It is also apparent by defendant’s Exhibit “E” that the alleged statement itself states that Perry’s main concern was that he be paid for his information and the statement further contains information that the alleged person that actually burned plaintiff’s home, a nephew of Perry’s, was now dead. In addition, the exhibit discloses that Perry would not testify in Court about the matter. Thus, Mr. Smith’s testimony and defendant’s Exhibit “E” are not trustworthy and are not probative of material facts. Consequently, this Court properly excluded both. Accordingly, this Court will order defendant’s motion for judgment notwithstanding the verdict or, in the alternative, for a new trial be denied.


source: Caselaw Access Project

author: MORAN, District Judge.

license: Public Domain

text:
    Elizabeth THORNTON, Plaintiff, v. Robert WAHL, Sheriff, LaSalle County, Robert Newell, Deputy Sheriff, LaSalle County Sheriffs Office, Anthony M. Condi, Deputy Sheriff, LaSalle County Sheriffs Office, Robert Scutt, LaSalle County Sheriffs Office and Edmund Thornton, Defendants.
    No. 84 C 3089.
    United States District Court, N.D. Illinois, E.D.
    Sept. 19, 1985.
    Patrick T. Murphy, Chicago, Ill., for plaintiff.
    Thomas P. Sullivan, Deborah H. Born-stein, Joan M. Hall, Jenner & Block, Chicago, Ill., John L. Cantlin, Cantlin, Bute & Associates, Ottawa, Ill., for defendants.
   MEMORANDUM AND ORDER

MORAN, District Judge.

This civil rights action is an installment in a contentious divorce proceeding. It is an installment which here concludes, as defendants’ motion for summary judgment is hereby granted.

I.

On November 10, 1983 the Circuit Court of Cook County entered a supplemental judgment of dissolution of marriage in connection with post-divorce property distribution proceedings between plaintiff and defendant Thornton. As part of the judgment order plaintiff was ordered to vacate the family home (Thornwood) by December 1, 1983. The relevant part of the order reads as follows:

It is further ordered that Mrs. Thornton vacate the Thornwood property and remove the listed furnishings at her cost on or before December 1,1983. This will allow her sufficient time to prepare for the move from the house. The court must keep in mind that Thornwood was originally found to be [Mr. Thornton’s] non-marital property on July 5, 1978. This finding was affirmed by the Appellate Court on November 20, 1980. [Mrs. Thornton] has lived there rent-free for this entire period and [Mr. Thornton] has been excluded from the main residence at Thornwood since sometime in 1975. I believe Mrs. Thornton has had enough time to find other living quarters. She has ample funds available to her to rent or buy a new house and she receives maintenance payments to help her pay the cost of living there. She can always store her furniture on December 1, 1983 if she has not found a permanent residence by then. In the event [Mrs. Thornton] has not vacated Thornwood and removed her listed furnishings by December 1, 1983, [Mr. Thornton] may ship the listed items to a storage facility in Ottawa, Illinois, and he may deduct the costs incurred from future payments of unallocated maintenance and child support. He may also move into the main house on December 2, 1983.

Plaintiff filed a notice of appeal with the state appellate court on November 29, 1983. On November 30, 1983 she filed an application for a stay of the November 10, 1983 order, also in state appellate court.

Thornton filed a response on December 1, 1983.

Thornton’s attorney sent a letter to defendant Wahl, the Sheriff of LaSalle County, on December 1, 1983. In the letter he advised Wahl of the Circuit Court’s November 10, 1983 judgment and the existence of pending motions in the appellate court. The letter enlisted the aid of Wahl and his department in the event that plaintiff failed peaceably to comply with the Circuit Court’s judgment. The letter stated that Thornton was entitled to enforce the supplemental decree by virtue of the final statement in the Circuit Court’s opinion that “[t]here is no just reason to delay enforcement or appeal of this judgment.” Thornton and his lawyer also met with Wahl on December 1, 1983. Thornton advised the sheriff that he would seek to oust plaintiff from Thornwood, if necessary, on December 7, 1983.

The appellate court had taken no action on plaintiff's motions by 8:15 a.m. on the morning of December 7, 1983, when Thornton and the three deputy sheriff defendants appeared at Thornwood. Plaintiff refused to admit Thornton and the deputies. After two fruitless hours a locksmith picked the lock of the door. Upon gaining entrance Thornton demanded that plaintiff leave, which she refused to do. Plaintiff then called her attorney, who in turn contacted Wahl and unsuccessfully argued that the eviction of plaintiff was improper and should be halted.

After Thornton had been in the house 15 minutes and after plaintiff had locked herself into her bedroom briefly, plaintiff agreed to vacate Thornwood on the condition that she be able to take a large box of personal papers or belongings. At this point she was arrested for criminal trespass, Ill.Rev.Stat. ch. 38, § 21-3, handcuffed, and jailed for two and-a-half hours before being released on bond. Presumably because of the local prominence of the parties plaintiff’s arrest attracted some media attention. The criminal trespass charge was later dropped.

II.

Plaintiff’s complaint alleges in essence that she was unlawfully seized and detained, in violation of the Fourth and Fourteenth Amendments. Her position is that the sheriff and his deputies wrongfully intervened to assist Thornton in carrying out an eviction he was not legally entitled to perform. There is no question that the arrest and detention of a citizen without lawful authority represents a substantive constitutional deprivation. There is also no question that defendants’ acts were performed under color of state law. Defendants’ position is that the deputies had probable cause to arrest plaintiff for criminal trespass. She, after all, refused to leave Thornwood one week after the date she was ordered to do so by the Circuit Court. The existence of probable cause for the arrest, defendants argue, shields them from section 1983 liability.

Summary judgment is to be granted when there are no disputes of material fact and the moving party is entitled to judgment as a matter of law. Even when all inferences are drawn in plaintiff’s favor, as they must, summary disposition in this case is warranted.

Plaintiff’s case rests upon two propositions. The first is that Thornton enlisted the aid of the sheriff and his deputies. In other words, the deputies arrested plaintiff in order to effectuate Thornton’s eviction of plaintiff from Thornwood. There is much evidence to support this proposition and the defendants appear to concede its truth. The second and failing proposition is that Thornton and the other defendants lacked authority to arrest plaintiff, thereby removing her from the premises.

At the time of the arrest Thornton had a court order declaring him the owner, granting him possession and directing plaintiff to leave by a prior date. It had not been reversed, vacated nor stayed. Plaintiff had a claim of right, but it had been adjudicated adversely to her.

Plaintiff does not deny that she was supposed to leave, that she first refused to do so and that her subsequent acquiescence was substantially qualified. She complains, rather, that her former husband used the wrong remedy. She claims that he should have proceeded by a forcible entry and detainer action or by a contempt proceeding and that she was unconstitutionally deprived of her rights by his initiating a criminal proceeding.

Forcible entry and detainer, was, however, apparently not available because the trial court in a divorce proceeding retains jurisdiction to enforce its decree. See Davis v. Davis, 114 Ill.App.3d 438, 71 Ill.Dec. 516, 451 N.E.2d 4 (4th Dist.1983). Nor has plaintiff indicated why the protection of the criminal laws is not available to someone solely because a contempt citation is obtainable. If Thornton had broken into the house prior to December 1 or, contrary to a court order not to contact plaintiff personally, had confronted her at the residence prior to that date, this court has no doubt that plaintiff would have, quite properly, called the police. Perhaps it would have been more appropriate for Thornton to seek a contempt order. In the absence of some further judicial action which relieved plaintiff from the obligation of the court order, however, by December 7, 1983, defendants had every reason to believe that plaintiff was remaining upon the land of another after receiving both notice from the owner to depart and a binding court order, entered after full adversarial proceedings, to that same effect. An arrest upon criminal complaint after plaintiff’s resistance to leaving may have been heavy handed. It was not a violation of her constitutional rights.

For the reasons stated, the defendants’ motion for summary judgment is granted. Their request for attorneys’ fees is denied.

      . Ill.Rev.Stat. ch. 38, § 21-3 reads in relevant part:
      Criminal Trespass to land.
      a) Whoever enters upon the land or any part thereof of another, after receiving, immediately prior to such entry, notice from the owner or occupant that such entry is forbidden, or remains upon the land of another after receiving notice from the owner or occupant to depart, commits a Class C misdemean- or.