
    HARTFORD FIRE INSURANCE COMPANY, a corporation, Appellant, v. O. T. JONES and Ruby I. Jones, Appellees.
    No. 20323.
    United States Court of Appeals Ninth Circuit.
    May 25, 1966.
    
      Augustus Castro, Paul Renne, San Francisco, Cal., Merrill & Merrill, Pocatello, Idaho, for appellant.
    A. L. Smith, Albaugh, Bloem, Smith & Pike, Idaho Falls, Idaho, for appellees.
    Before CHAMBERS, POPE and BARNES, Circuit Judges.
   PER CURIAM:

On June 11, 1963, the four unit motel owned by the Joneses at Arco, Idaho, suffered very heavy damage from fires which apparently simultaneously broke out in each unit. Hartford had insured the premises against fire.

Hartford on a diversity of citizenship basis initiated a declaratory action and appellees filed a counterclaim (called by them a cross-complaint). The underlying main issue was whether the Joneses themselves ignited the fires. On this issue, the court directed that the verdict be for the Joneses but submitted the amount of damage to the jury. Hartford appeals.

The case teetered on whether there was enough evidence to go to the jury. After a search of the record, we are convinced that Hartford had no evidence to spare, but that it did have enough (mostly circumstantial) to submit the arson issue to the jury. Accordingly, we reverse.

We do not rule on the alleged error rooted in surprise because the event should not occur on a retrial.

On the third point, in our view, the statement of one Betty Oldham, in the frame of this case, was only usable for impeachment and not as past recollection recorded.

Whether the issue of damages should be retried, we leave to the discretion of the trial court.

Reversed for proceedings consistent with the foregoing opinion.  