I find myself unable to agree with the majority opinion, and therefore respectfully dissent.
The majority say:
"It is conceded that on a defense of this kind the burden of proof rests upon the appellant to establish, by a preponderance of the evidence, (1) that the fire was of incendiary origin, and (2) that the appellee was connected with the cause thereof."
With this statement I agree, and turn to the record to ascertain how the appellant has "established by a preponderance of the evidence that the appellee was connected with the cause of the fire".
The appellant relies upon circumstantial evidence, and the circumstances relied upon by the majority in holding that it was a jury question whether or not the appellee set the fire, are as follows (quoting from the opinion):
First. "One of the circumstances urged is that within a few months after taking out a $3,000 policy, he took out an additional policy of $1,000; that his property was worth less than $4,000 and was overinsured; that a financial benefit to the appellee might result from a fire, and for that reason he had a motive in starting it."
In answer to whether or not this was a circumstance, I turn again to the majority opinion:
"The value of the stock of merchandise and fixtures in the building at the time of the fire was between $3,000 and $4,000."
Thus, we see that there was no evidence of overinsurance in this case, for the majority concede that the "value was between $3,000 and $4,000", and the aggregate amount of the insurance was only $4,000.
The next circumstance which the majority refer to is (quoting from the opinion): *Page 814
"It is significant that the appellee did not testify that he remained in his room the balance of the night and until he was notified of the fire. He could easily have testified to this, but failed to do so. It is also significant that he does not say thathe did not cause the fire. All he says is that he `did not know how the fire started', but he does not specifically deny that he caused or procured it to be started."
The record shows without any dispute the appellee went to his rooming place, went to bed about 10 o'clock, and was in bed at the time he was called by the fire department, which was around 2:30 in the morning. Not only he testified to this, but the people with whom he lived so testified. Now, to say that because he did not testify he stayed in bed from 10 o'clock until 2:30 in the morning, that is a circumstance which would justify the court in submitting a case of this kind to the jury, seems to me to be rather far-fetched. The appellant had ample opportunity to cross-examine the appellee, and could easily have brought out this fact, which the majority think so material.
In regard to the fact that he did not state that "he did not cause the fire", the record shows that that question was not directly asked him, but he did state that "he did not know how the fire started". Certainly, that answer in itself states that he did not cause the fire, for, if he had caused the fire he would have known how it started. The evidence shows that he was examined by the fire chief of Fort Dodge and by one of the deputy state fire marshals. Affidavits were taken from him, and nowhere is there any showing that he made any false statements in regard to his connection with the fire. It is hard for me to believe that because he said, "I do not know how the fire started", when he should have said, according to the majority, "I did not cause the fire", that is a circumstance which would justify the court in submitting the case to the jury.
Another circumstance which the majority refer to is the fact that he did not go back into the same business, but the record shows that he immediately went into the business of conducting a beer parlor, and within a few feet of where he was in business at the time of the fire. There is no showing in the record that he had any desire to get out of business, and there is a showing that immediately after the fire he went back into business in the same locality. *Page 815
These are all the circumstances referred to in the majority opinion, with the exception of the fact that the appellee testified he had all of the keys to the building, and there was no evidence to show that the building was broken into. In the case at bar appellee rented the building. There was no showing in regard to the nature of the locks. It was a small store, on the main street of the city of Fort Dodge. The owner of the building may have had a key; there may have been many who could have had a key to this building.
As I analyze the majority opinion, the question simply comes down to this: If the proprietor of a store has all of the keys to the store building, and there is no evidence of the building being broken into, and if there is evidence that the fire was of incendiary origin, then it is a question for the jury to say whether or not the proprietor of the store set fire to the building. This in face of the fact that the majority opinion lays down the rule in cases of this kind that the burden of proof rests upon the insurance company to establish by a preponderance of the evidence that the appellee was connected with the setting of the fire.
In most of the cases cited by the majority in their opinion you will find evidence of over-insurance. The owner of the building or the stock of merchandise was financially embarrassed; he was losing money in his business; he was seen in or near the building some time shortly before the fire. One of the cases relied upon by the appellant in this case, and cited by the majority, is the case of Richardson v. Travelers Ins. Co. (Mass.) 193 N.E. 40. In that case we find the insured increased his insurance $20,000 shortly before the fire; that his business was not good; that he was unable to pay his taxes on the real estate involved; that his tenant had moved out; that he had a large mortgage, some $33,500, on the building; that his actual investment was small; that the insured was seen leaving the premises some little time before the fire. That the fire was of incendiary origin, was conceded. Certainly, taking into consideration all the circumstances brought out in the Richardson case, it was a question for the jury to decide whether or not the insured had anything to do with the setting of the fire, but in the case at bar we find that appellee was not over-insured; that he left his place of business, a prosperous store; that he had money in the bank, money in the post office; that he was not pressed by any creditors; that he went to his rooming place, visited with friends, *Page 816 and went to bed some time before midnight, and was in bed at the time he was called by the fire department at about 2:30 in the morning. The amount of the loss in this case was agreed upon. There was no attempt made by appellee to conceal anything. The only circumstance, as I read the record, is the fact that the appellee had the keys to the building. That, in my judgment, would not justify the court in submitting the defense pleaded to the jury. Juries must have some evidence upon which to base their verdicts. Mere suspicion is not sufficient. If the insurance company pleads as one of its defenses, as it did in the case at bar, that the insured set fire to his own store, that company must prove that defense by a preponderance of the evidence. If there is no evidence that would justify a jury in finding that the insured set fire to the building, then it is the duty of the lower court to direct a verdict. In the case at bar I find no evidence, no circumstance of any kind, that would justify a jury in finding that the appellee set fire to the building. The distinguished and able trial judge had before him the witnesses in this case; he listened to them as they testified, and then directed a verdict in favor of the appellee. I believe he was right, and I would affirm the decision of the lower court.