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First State Bank of Denton v. Maryland Casualty Co

Citation. First State Bank v. Maryland Casualty Co., 918 F.2d 38, 31 Fed. R. Evid. Serv. (Callaghan) 998 (5th Cir. Tex. Nov. 29, 1990)
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Brief Fact Summary.

The Mills’ family residence, which was insured by the Maryland Casualty Company, was completely destroyed by fire. After inspecting the site, the insurance company refused to pay the claim, concluding the fire was a product of arson.

Synopsis of Rule of Law.

The district court acted correctly both in admitting the contents of the telephone call to the Mills’ residence and in denying plaintiff’s motion for j.n.o.v.


The Mills’ family residence was insured by the Maryland Casualty Company and was subsequently destroyed by fire. About fifteen minutes after the fire began, a police dispatcher called the Mills’ new residence and was informed that they were not at home. Neighbors had seen lights on in the home earlier in the day despite the property being uninhabited, and one stated they had seen a pickup truck on the access road to the house. Mr. Mills owned a pickup truck. The insurance company concluded the fire had been intentionally set and refused to pay on the policy.


Did the trial court abuse its discretion by failing to sustain an objection that the police dispatcher’s testimony about the phone call was both unauthenticated and hearsay?
Did the trail court err in denying the plaintiff’s motion for j.n.o.v.?


The trial court did not abuse its discretion by overruling the authentication objection.
Under these circumstances, the hearsay evidence was properly admitted.

The district court acted correctly in denying the plaintiff’s motion for j.n.o.v.


All that is necessary in authenticating a phone call is that the proponent offer sufficient authentication to make a prima facie case that would allow the issue of identity to go to the jury. This burden was met here.
The timeliness of the statement is the key to determining whether the statement meets the present-sense impression exception to the hearsay rule. The person answering the phone responded to the dispatcher’s question immediately upon gathering the information that the Mills’ were not at home.

A motion for j.n.o.v. should be granted only where the facts and inferences point so strongly in favor of the moving party that a reasonable jury could not arrive at a contra verdict. Here, the insurance company introduced enough circumstantial evidence of the Mills’ reasonable motive to set the fire, and evidence of the fire’s incendiary origin to enable them to reach the jury and for the jury to come to a conclusion.

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