Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 71 C 1014 Frank J. McGarr, Judge.
Swygert, Chief Judge, Cummings and Rives,*fn* Circuit Judges.
Honeycutt brought this diversity action against Aetna on a policy insuring Honeycutt against loss or damage to his home by fire. On August 18, 1970, and again on August 23, 1970, while the policy was in effect, Honeycutt's home was damaged by fire. Honeycutt gave Aetna timely notice and submitted proof of loss alleging damage of $4,283.92 by the fire of August 18 and damage of $65,835.39 by the fire of August 23.
Aetna refused to make any payment. In its answer to Honeycutt's complaint Aetna alleged "that the Plaintiff failed to use all reasonable means to save and preserve the property at and after the loss." (App. 21) Aetna's answer also alleged that Honeycutt fraudulently misrepresented the amount of the loss in the fire of August 23, 1970.
Pursuant to order of court the case was tried solely on the question of liability. On trial, Aetna based its defense on a contention that Honeycutt set or procured the setting of the fires. Aetna's defense was treated by the parties and denominated by the court as a charge that Honeycutt committed arson.*fn1
The jury returned its verdict in favor of Aetna: "We, the Jury, find for the defendant Aetna Insurance Company, and find said company not liable on the insurance policy in question." (App. 6) Pursuant to that verdict, final judgment was entered for Aetna. The court denied Honeycutt's post-trial motions for judgment n.o.v. or, in the alternative, for a new trial. This appeal followed.
The issues presented for review are framed by Honeycutt's contentions that the district court committed reversible error in the following ways: (1) In allowing the introduction of evidence improperly obtained by the authorities, and/or by (2) Aetna's representatives, (3) in its instructions to the jury, and (4) in denying Honeycutt's motion for new trial based on newly discovered evidence. Decision of these issues, of course, necessitates careful consideration of the evidence.
At the time of each fire, Honeycutt lived alone. His wife had died on October 6, 1969, and his four sons were away from home -- three in the Navy and one in college. In the Summer of 1968, Honeycutt first listed for sale with a realtor the house and the nine acres of land on which it was located. After receiving no offer, he listed the property with another realtor and a sale on undisclosed terms was consummated in the Spring of 1971, more than six months after the fires.
In August, 1970, when the fires took place, it appears that Honeycutt's home place was his only substantial asset. The property was encumbered with a first mortgage totaling $17,965.17 to Cook County Savings & Loan Association of which $7,000 had been borrowed on April 7, 1970, and a second mortgage of about $20,000 to the First National Bank & Trust Company of Barrington, Illinois. Honeycutt also had an unsecured debt of $300 to the Lake Shore National Bank. His checking account balance was $142 and he had no personal savings account, although he was trustee of a savings account for his sons. He owned no securities or any other real estate. Income tax returns reveal little income. Honeycutt reported on his tax returns a loss of $3,428.64 in 1968 (Dep. 35) and a loss of $3,716.62 in 1967 (Dep. 23), and in 1969 he reported total income of $3,897.53 for himself and his wife. At the time of the fire, Honeycutt was working for Weber Plastic Company, selling their products as well as products which were designed by him and manufactured on an individual basis by Weber Plastics.
The first fire took place on Tuesday, August 18, 1970, and started under the kitchen sink. Intense heat from the fire melted the solder holding the water pipe joints together. Water rushed from the pipe and extinguished the fire, but also soaked the carpets in the house. In addition, there was extensive smoke damage to the house. Honeycutt claimed that he had left the house about 7:00 A.M. to make a business trip to Stevens Point, Wisconsin.*fn2 He reported the fire to the Barrington Hills police about 7:00 P.M.; and they, in turn, reported the fire to the fire department.
Honeycutt did not spend the night of August 18 in his home, but checked into a local motel where he continued to live until some time after the second fire. On August 19, the day on which Honeycutt reported the August 18 fire to Aetna, the Company sent two adjustors to examine the fire damage. Later the same day one of them returned to make another inspection. On both the 19th and 20th, Honeycutt and various commercial concerns worked to clean up the damage. On the weekend of August 22-23, he alone continued the clean-up efforts.
The second fire took place on Sunday, August 23, 1970. Honeycutt had spent the day working at his house. A telephone repairman came to repair the telephone around 1:00 or 2:00 P.M. After the repairman left, Honeycutt hung some laundry on an outside line and removed from the house some wet corrugated boarding. He then mowed his 9-acre yard. Honeycutt testified that, after finishing the mowing, he went to the house, where he discovered the fire. He drove to a neighbor's house to ask the neighbor to call the police and the fire department. The official time of the alarm at the fire department was 7:35 P.M.
The fire department extinguished the fire but not before it caused serious damage. Subsequent investigation revealed that there had been separate fires in the living room, bedroom, the TV room, the kitchen, the dining room, and the furnace room. The local police chief made an inspection of the premises on the evening of the fire. The next day, Monday, August 24, he and Fire Chief Mertens, Lt. Arens of the local fire department and Deputy State Fire Marshal Valley made inspections of the Honeycutt house. On the evening of the same day, Honeycutt met with Police Chief Hummel and Fire Marshal Valley in Hummel's office. There, Honeycutt stated that he wanted to learn the origin of the fire and would cooperate 100 per cent with the investigation.
On Wednesday, August 26, around 10:00 A.M., Police Chief Hummel and Deputy State Fire Marshal Schaefer inspected the Honeycutt house and took samples of the burned materials. They entered the house by removing a sheet of plywood which was barring the door. Honeycutt did not learn of this search until the trial. This is the first of the searches claimed improper by Honeycutt.
On Thursday, August 27, there was another inspection of the house which was made by Lt. Mertens of the local fire department, Deputy State Fire Marshals Schaefer and Valley, a private investigator Sutherland, local Police Chief Hummel, Aetna's consulting engineer Alva Todd, Aetna's counsel Leahy, and a photographer for Aetna, and possibly other persons. At the request of Hummel, Honeycutt let them all enter to inspect the house. Honeycutt makes no claim in regard to the propriety of that search. There was another search on Friday, August 28 or on Saturday, August 29 (the witness, Deputy State Fire Marshal Schaefer, was unsure of the date), at which time Honeycutt, Leahy, Todd and Aetna Adjuster Putnam were present. Honeycutt raises no claim as to the propriety of that search.
Honeycutt does claim that another search made on August 29 was improper. On that date, while Honeycutt was mowing the yard, Leahy and an Aetna photographer made an inspection of the house. Again the plywood sheet was removed to gain entrance to the house. When Honeycutt returned to the house, Leahy, who was standing in the front entrance, told him that the photographer was inside. When the photographer finished, he came out; and the two men drove away.
There was much stronger evidence that the fires were intentionally set than that Honeycutt was the guilty party. He had no criminal record and was not charged with arson by the authorities. The evidence tending to connect Honeycutt with the setting of the fires is circumstantial. The most damaging evidence against him is the showing of possible motive on his part to set the fires and the absence of evidence of motive on the part of any other person.
We turn now to the issues presented for review.
Admission of Evidence Obtained by State or City Authorities.
Honeycutt claims that the district court should have excluded the evidence obtained by the authorities in their August 26 search of Honeycutt's house and that the admission of that evidence was error of a constitutional dimension. We should reach and decide such a claim only if necessary, and ...