(dissenting).
Plaintiff was the owner of a one-story store building and a stock of merchandise in a rapidly deteriorating neighborhood in the City of Peoria, Illinois. He had owned and operated this building since 1923. He also owned vacant store buildings immediately on either side of the store building which he was occupying on November 28, 1952. In the operation of the store, he employed his son-in-law Berg as manager. There were three additional employees.
Plaintiff’s store had been closed on Thanksgiving Day, the day before the fire. Berg was the only person in the store on Thanksgiving Day. At approximately 8:00 a. m. on the day of the fire, plaintiff and Berg unlocked the store and went inside. Normal conditions seemed to prevail. The electric lights were in working order. The three other employees were not due at the store for half an hour. Berg went to the basement to take care of the furnace. He testified he was not smoking on this occasion. A few minutes later smoke was seen at the back stairway coming from the basement. Instead of calling the fire department from the front of the store which apparently could have been done at that time in complete safety, plaintiff ran across the street to Saylor’s Confectionery Store. He said to the proprietor: “Mrs. Saylor, my place is on fire and I am afraid I have lost everything I have got.” Mrs. Saylor offered to call the fire department, but Edlin insisted that he make the call.
The records of the Peoria Fire Department disclose that the fire at the Edlin *84store was reported at 8:18 A.M. The fire-fighting equipment arrived at the store within two minutes thereafter. The fire in the building was then of such extent and intensity that it was necessary to fight the fire entirely from outside of the building.
There were numerous suspicious circumstances in addition to those already narrated. I mention but two. Through some remarkable coincidence, Edlin had retained at his home the books and records pertaining to the inventory of merchandise which was destroyed by the fire. All of the records for previous periods were at the store and were destroyed. Also, the book purporting to contain the 1952 inventory was highly suspect. Many of the entries were for the year 1953. Furthermore, to rule out the possibility of an explosion of the furnace or the stoker, a subsequent examination showed no fire damage to either.
The defense of arson must usually be based upon circumstantial evidence. Rare indeed is the case where direct proof of incendiarism can be shown. “The existence of a motive in plaintiff alone is a weighty element in the proof of arson.” Wilson v. Aetna Insurance Co., La.App., 161 So. 650, 651. I believe that the learned trial court committed reversible error, because he excluded evidence which should have been considered by the jury on the question of motive. The error is more glaring because the trial court permitted the plaintiff to offer evidence showing lack of motive.
Prior to the fire, a condemnation suit had been prosecuted. It sought to condemn Edlin’s property together with other property in connection with a proposed Federal Public Housing Development. A formal offer of proof was made by defendants to show that Edlin had received an award of $43,500 for his building and that the amount of the award had been paid to him; that thereafter Edlin had filed suit against insurance companies insuring the building seeking recovery of $50,000 for damage to the building caused by the fire. The Court refused the offer of proof saying “we don’t want to try a condemnation suit.” At another point the Court ruled “Objection sustained. I don’t think it is material to this case at all. This was a construction of this bridge across the river, was it, and they were going to condemn it?”
It seems clear to me that on the question of motive, defendants should have been permitted to show that Edlin would profit handsomely by a fire. The $43,500 received by Edlin as a result from the condemnation suit, was in the nature of clear profit. The suits against the insurance companies, if successfully maintained, would bring in an additional $50,-000 for damage to the building and approximately $34,000 for damage to his stock of goods.
The majority apparently finds no error in the rejection of this material evidence because it “was merely a proposed embellishment of a fact already before the jury.” The trial court had ruled several times that such evidence had nothing to do with the case. In the light of such rulings how the jury could give even a limited effect to the condemnation suit, escapes me.
I think there was further error in the trial court’s exclusion of opinion evidence by state deputy marshal Parlier. It was plaintiff’s theory that the fire was caused by the furnace and from cardboard placed immediately adjacent thereto. Parlier had made an inspection of the premises after the fire. His opinion was sought as to whether there had been any intense fire immediately around the furnace. The court sustained an objection saying “His opinion, I don’t think, would help the jury.”
Parlier had been engaged in fire prevention work as a state official for some twenty-five years. He had much experience in investigating questionable fires. He had pursued studies in that field at Purdue University and at Urbana. It seems to me that he had the qualifications of an expert to answer the question which was material to the issues.
It is my view that the exclusion of material evidence affected the substantial rights of the defendants. I would reverse for a new trial.