dissenting.
I respectfully dissent.
Betty Kulubis brought this action for breach of contract to collect the proceeds of a standard Texas homeowners insurance policy, issued by the Farm Bureau. Pursuant to Rule 378, Tex.R.Civ.P.Ann. (1985) the parties entered into the following agreed statement:
Betty Kulubis and John Kulubis were married in 1971 following John’s service as a helicopter mechanic and door gunner in Vietnam. In 1973, Betty’s parents, Carl and Betty Dittmar, purchased a mobile home and gave it to John and Betty. John and Betty purchased a standard homeowner’s insurance policy, including coverage for loss by fire and malicious mischief, from Defendant. That policy was in full force and effect on June 26, 1982. Both John and Betty were named insureds in that policy.
During the spring of 1982, John Kulu-bis began a course of extreme violence and abuse toward Betty. His actions included the beating and severe injury of Betty, firing of gunshots above Betty’s head while she cringed in their bedroom, attempting to force Betty to pull the trigger on the gun which he had turned toward himself, and threatening to hire other men to rape her. When Betty could not stand this any longer, she and their son Johnny left. She filed suit for divorce and obtained a temporary restraining order and order of temporary conservatorship for Johnny.
Immediately thereafter, on June 25, 198[2], John called Defendant insurance company (Appellee) and ordered the policy cancelled. These actions were ineffectual, however, as the company refused to accept an oral cancellation. John Kulu-bis then proceeded to destroy all of the family’s belongings. He beat his motorcycle with an axe; rammed his pickup truck into the garage; fired a shotgun repeatedly inside the home, destroying the television set and other appliances and furniture; and smashed the washer, dryer, freezer, car, and pickup truck with *290an axe. On June 26, he set a fire which totally destroyed what remained of the mobile home, garage, and contents. He then placed the shotgun in his mouth and pulled the trigger; miraculously, he survived.
Betty Kulubis had no knowledge of, or participation in, any of the foregoing property destruction. The trial court specifically found that, in causing the loss to the property in question, John Kulubis was not acting for the purpose of collecting the insurance proceeds thereupon.
The policy required submission of proof of loss within 91 days of a loss. Within this 91-day period, however, Ap-pellee denied all liability under the policy and refused to pay Appellant’s claim. The actual cash value of the insured property at the time of the loss was $21,000.00.
John and Betty Kulubis were divorced on December 17, 1982. The divorce decree awarded the mobile home, its contents, and any insurance proceeds payable thereupon to Betty Kulubis as her sole and separate property. John Kulu-bis has no interest whatsoever in these insurance proceeds.
At the conclusion of the trial, the jury found that John Kulubis intentionally destroyed the insured property. The jury further found that the Dittmars did not intend to make a gift of the mobile home to Betty Kulubis alone. Based upon these findings, the trial court entered a take-nothing judgment in favor of the Farm Bureau. Betty Kulubis contends that the trial court erred in granting this judgment, because she had no knowledge of, nor did she participate in, the destruction of the property.
The Farm Bureau urges this Court to decide this case on the rule prescribed in Jones v. Fidelity and Guaranty Insurance Corp., 250 S.W.2d 281 (Tex.Civ.App. 1952, writ ref’d): An innocent co-insured may not recover under a casualty insurance policy when another co-insured has intentionally caused the destruction of the insured property. See also Western Fire Insurance Co. v. Sanchez, 671 S.W.2d 666 (Tex.App.1984, writ ref'd n.r.e.); Bridges v. Commercial Standard Insurance Co., 252 S.W.2d 511 (Tex.Civ.App.1952, no writ). Analysis of these authorities reveals that this rule is grounded in the public policy concept that a wrongdoer must not, to any extent or in any manner, benefit from his wrongful acts. See 5 Appleman, Insurance Law and Practice, § 3113 (1970). See also Insurance Law: Innocent Spouse’s Right to Recover in Arson Cases, 17 Wake Forest L.Rev. 1022, 1034 (1981).
In the present case, it is expressly agreed that John Kulubis has no interest in Betty Kulubis’ portion of the insured property or the insurance proceeds. In the case before us, the wrongdoer, John Kulubis, was under a restraining order pending divorce. He unsuccessfully attempted to cancel the policy of insurance on the couple’s property in an apparent effort to deprive the innocent party, Betty Kulubis, of insurance proceeds on property he intended to destroy. Undeterred, he proceeded to destroy the property anyway. In the subsequent judgment for divorce, Betty Kulu-bis was purportedly awarded all interest in the insured property as her sole and separate property, depriving John Kulubis of any benefit he might to any extent or in any manner have otherwise received.
The gift of the mobile home to both John and Betty resulted not in community ownership, but in their ownership of the property as tenants in common, each with an undivided one-half interest. Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799 (1925). Betty Kulubis therefore cannot be entitled to more than one-half of the proceeds from the insurance on the mobile home, despite the property division in the judgment of divorce. We must presume that the remainder of the insured property was community property, of which Betty Kulubis owned only one-half at the time the property was destroyed. Tex.Fam.Code Ann. § 5.02 (1975).
The Supreme Court of our neighboring state of New Mexico, in Delph v. Potomac *291Insurance Company, 95 N.M. 257, 620 P.2d 1282 (1980), a case in which the facts are strikingly similar to those of this case, reasoned that a wrongdoing husband’s fraud could not be attributed or imputed to his innocent wife without unjustly imputing responsibility for his act to the wife. This reasoning has also been followed in a number of other jurisdictions.1
In the case before us, where a wrongdoing co-insured destroys property for the purpose of depriving the innocent co-insured of the benefit of either the property or insurance proceeds resulting from its loss, the rule of Jones v. Fidelity and Guaranty Insurance Corp., supra, has no proper application. While the rule implicitly creates a presumption that the wrongdoer may benefit by fraud and collusion or otherwise, I would hold such presumption to be rebuttable. The undisputed facts of this case demonstrate that no such danger exists here.
The public policy goal underlying the rule would not be furthered by applying the rule to this case, and to do so produces an unjust and unconscionable result. “But just as the clavicle in the cat only tells of the existence of some earlier creature to which a collar-bone was useful, precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten. The result of following them must often be failure and confusion from the merely logical point of view.” Holmes, The Common Law, Lecture I, at 35 (1881).
To apply the Jones rule here we must ignore the reasoning and purpose behind it. We must also ignore the agreed facts of this case and effectively accomplish for the wrongdoer the evil he intended to do; inflicting on Betty Kulubis the injury he intended to inflict by depriving her of the insurance protection from injury for which she has paid. We should acknowledge reality and decide such cases upon their own facts. Arbitrary application of a rule with disregard for its underlying purpose and the peculiar circumstances of a particular case can, and here does, result in injustice. Rules limiting or precluding a recovery where it would otherwise exist should be founded on reason and justice, not on the rigid pursuit of a principle which does not fit the facts of the case under consideration. For these reasons, I am unable to concur in the result reached by the majority and would render judgment that Betty Kulubis recover one-half of the insurance proceeds on the destroyed property.
. See: Georgia: Richards v. Hanover Ins. Co., 250 Ga. 613, 299 S.E.2d 561 (1983); Maryland: St. Paul Fire and Marine Ins. Co., 291 Md. 139, 433 A.2d 1135 (1981); North Carolina: Lovell v. Rowan Mutual Fire Ins. Co., 302 N.C. 150, 274 S.E.2d 170 (1981); Alabama: Hosey v. Seibels Bruce Group, South Carolina Ins. Co., 363 So.2d 751 (1978); Maine: Hildebrand v. Holyoke Mutual Fire Ins. Co., 386 A.2d 329 (1978); Delaware: Steigler v. Insurance Co. of North America, 384 A.2d 398 (1978); New Jersey: Howell v. Ohio Casualty Insurance Company, 130 N.J.Super. 350, 327 A.2d 240 (1974); New Hampshire: Hoyt v. New Hampshire Fire Ins. Co., 92 N.H. 242, 29 A.2d 121 (1942). See also Insurance Law: Innocent Spouse's Right to Recover in Arson Cases, supra.