Generally, the insurer must rely on circumstantial evidence to prove the defense. See Polasek, 847 S.W.2d at 282; Garrett v. Standard Fire Ins. Co., 541 S.W.2d 635, 638 (Tex.Civ.App.-Beaumont 1976, writ ref'd n.r.e.). The crime of arson, being in defiance of law, is ordinarily conceived in secrecy and executed in such a manner as to avoid detection and exposure; and proof of such an unlawful enterprise must, in the very nature of things, be made by circumstances, and every circumstance which tends to cast light upon the incident is legitimate and proper.
See Bufkin v. Texas Farm Bureau Mutual Insurance Company, 658 S.W.2d 317, 320 (Tex.App. — Tyler 1983, no writ); State Farm Mutual Automobile Insurance Company v. Davis, 576 S.W.2d 920, 921 (Tex.Civ.App. — Amarillo 1979, writ ref'd n.r.e.). It has long been the law in this state that arson may be established by circumstantial evidence. Garrett v. Standard Fire Insurance Company of Hartford Connecticut, 541 S.W.2d 635, 638 (Tex.Civ.App. — Beaumont 1976, writ ref'd n.r.e.). Under the criminal law, "A person commits an offense [of arson] if he starts a fire with intent to destroy or damage any building: knowing that it is insured against damage or destruction." Texas Penal Code Ann. § 28.02(a)(2) (Vernon Supp. 1987) (emphasis added).
Id.; accord Bufkin v. Texas Farm Bureau Mut. Ins. Co., 658 S.W.2d 317, 320 (Tex.App.-Tyler 1983, no writ). Under Texas law there is no need, in a civil case, for direct evidence to prove that a fire was set intentionally. For example, in Garrett v. Standard Fire Ins. Co., 541 S.W.2d 635 (Tex.Civ.App. — Beaumont 1976, writ ref'd n.r.e.), expert testimony showed that plaintiff's business fire had been incendiary in origin. Plaintiff had greatly increased his insurance coverage about a month before the fire and was under a severe financial strain as a result of the closing of his business.
When the error complained of relates to the admission of evidence, the cases have clearly held that the error must be raised in a motion for new trial. Garrett v. Standard Fire Insurance Co., 541 S.W.2d 635, 638 (Tex.Civ.App. Beaumont 1976, writ ref'd n.r.e.); Goldring v. Goldring, 523 S.W.2d 749, 753 (Tex.Civ.App. Fort Worth 1975, writ ref'd n.r.e.); Allandale Nursing Home, Inc. v. John Bremond Co., Inc., 514 S.W.2d 958, 959 (Tex.Civ.App. Austin 1974, writ ref'd n.r.e.); Zeek v. Gaddy, 287 S.W.2d 490, 492 (Tex.Civ.App. Austin, 1956, writ ref'd n.r.e.). While it is true that McCasland did not directly urge to the court of civil appeals that the trial court erred in admitting evidence, his complaint was that the trial court erred in basing its judgment on evidence that should have been held inadmissible. In either type of complaint, the trial court must have had some opportunity to rule on the admissibility of evidence before the question of such admissibility can become a ground of complaint on appeal. This result is clearly dictated by the Texas Rules of Civil Procedure.
Evidence of prior acts is relevant to Dailey's motive to set the fire or cause the fire to be set. See TEX. R. EVID. 404(b)(2) (permissible purposes for evidence of crimes, wrongs, or other acts include motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident); see alsoGarrett v. Standard Fire Ins. Co. of Hartford, Conn. , 541 S.W.2d 635, 638 (Tex. Civ. App.—Beaumont 1976, writ ref'd n.r.e.) (in an arson case, "every circumstance which tends to cast light upon the incident is legitimate and proper"). This is particularly true given that circumstantial evidence will likely be necessary for the factfinder to determine whether Dailey planned the fire for purposes of committing insurance fraud.
It has long been the law in this State that arson may be established by circumstantial evidence. See, e.g., Garrett v. Standard Fire Insurance Company of Hartford, Connecticut, 541 S.W.2d 635, 638 (Tex.Civ.App.-Beaumont 1976, writ ref'd n.r.e.), where the court said: The crime of arson, being in defiance of law, is ordinarily conceived in secrecy and executed in such a manner as to avoid detection and exposure; and proof of such an unlawful enterprise must, in the very nature of things, be made by circumstances, and every circumstance which tends to cast light upon the incident is legitimate and proper.
Arson may be proved by circumstantial evidence because it is ordinarily conceived and executed in secrecy. Luker, 801 S.W.2d at 622; Garrett v. Standard Fire Ins. Co., 541 S.W.2d 635, 637 (Tex.Civ.App.-Beaumont 1976, writ ref'd n.r.e.); Payne, 409 S.W.2d at 595. Ordinarily the circumstantial proof that the insured committed arson consists of evidence that the fire had an incendiary origin and that the insured had an opportunity and a motive to set it.
By its very nature, the jury is typically in a situation to make findings based upon circumstantial evidence. See Garrett v. Standard Ins. Co. of Hartford, Conn., 541 S.W.2d 635 (Tex.Civ.App. — Beaumont 1976, writ ref'd n.r.e.). Blankenship's credibility was a key factor in this case. After reviewing the entire record, we hold that the evidence was factually sufficient to support the jury's finding that the fire was intentionally set and that Blankenship had an opportunity and motive to set it. Point one is overruled.
To establish arson as a defense to a civil suit for insurance proceeds, the insurer must prove by a preponderance of the evidence that the insured set the fire or caused it to be set. St. Paul Guardian Ins. Co. v. Luker, 801 S.W.2d 614, 622 (Tex.App. — Texarkana 1990, no writ); Texas Gen. Indem. Co. v. Speakman, 736 S.W.2d 874, 880 (Tex.App. — Dallas 1987, no writ); Bufkin v. Texas Farm Bureau Mut. Ins. Co., 658 S.W.2d 317, 320 (Tex.App. — Tyler 1983, no writ). Because arson is usually planned and committed in secrecy to avoid detection, these elements may be proved by circumstantial evidence. Luker, 801 S.W.2d at 622; Speakman, 736 S.W.2d at 880; Bufkin, 658 S.W.2d at 321; Garrett v. Standard Fire Ins. Co., 541 S.W.2d 635, 638 (Tex.Civ.App. — Beaumont 1976, writ ref'd n.r.e.). Ordinarily the circumstantial proof that the insured committed arson consists of evidence that the fire had an incendiary origin and that the insured had an opportunity and a motive to set it. See generally Charles T. Smith, Note, Arson — Defense of a Fraudulent Property Insurance Claim, 35 DRAKE L.REV. 831 (1986-1987).
Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442 (Tex. 1989); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1952). St. Paul correctly contends that arson may be proved by circumstantial evidence because it is ordinarily conceived and executed in secrecy, citing Garrett v. Standard Fire Ins. Co., 541 S.W.2d 635 (Tex.Civ.App. — Beaumont 1976, writ ref'd n.r.e.), and Payne v. Hartford Fire Ins. Co., 409 S.W.2d 591 (Tex.Civ.App. — Beaumont 1966, writ ref'd n.r.e.). It also correctly states that its burden of proof at trial was not to show by an absolute certainty but rather by a preponderance of the evidence that the Lukers intentionally set the fire. Bufkin v. Texas Farm Bureau Mutual Ins. Co., 658 S.W.2d 317 (Tex.App. — Tyler 1983, no writ); Payne, 409 S.W.2d at 595.