Adams v. State Bd. of Insurance

• Decision Date: 20 November 1958
• Docket Number: No. 13278,13278
• Citation: 319 S.W.2d 750
• Parties: Homer B. ADAMS, Appellant, v. STATE BOARD OF INSURANCE et al., Appellees. . Oct, 30, 1958. Rehearing Denied
• Court: Texas Court of Appeals

Page 750

319 S.W.2d 750

Homer B. ADAMS, Appellant, v. STATE BOARD OF INSURANCE et al., Appellees.

No. 13278.

Court of Civil Appeals of Texas, Houston.

Oct, 30, 1958.

Rehearing Denied Nov. 20, 1958.

Second Motion for Rehearing Overruled Jan. 8, 1959.

Jim S. Phelps, Houston, Blakeley & Williams, Carey Williams, Houston, of counsel, for appellant.

Will Wilson, Atty. Gen., Wallace P. Finfrock, R. V. Loftin, Jr., Asst. Attys, Gen., for appellee.

WERLEIN, Justice.

This suit was brought by Homer B. Adams, appellant, against The Life Insurance Commissioner of Texas, John Osorio, and the Board of Insurance Commissioners of the State of Texas, John Osorio, Chairman, Mark Wentz and Morris Brownlee, members, as an appeal from an order of appellee Board of Insurance Commissioners of the State of Texas, dated March 13, 1957, denying appellant a license to act as a life insurance counselor, under the provisions of Article 21.07-2, Texas Insurance Code, 1955, V.A.T.S., and also as provided for in Sec. 13 of Article 21.07-1 thereof.

Appellant prayed that the court set aside said order and enter an order granting him such license, and directing the appellees to prepare and mail to him the proper identification card showing that he was duly licensed as a life insurance counselor. On the verdict of the jury, the trial court entered judgment denying all relief sought by appellant.

Appellant's First Point of Error is that the trial court erred in allowing appellees to introduce evidence over his objections that he had been tried and convicted of a crime. The court permitted appellees, over the objection of appellant to ask:

'Mr. Adams, on or about the first part of March of 1949, were you not tried and convicted by a jury in the Criminal District Court of Bexar County, Texas, for theft of over $50.00, and did not the jury return a verdict of guilty therein?'

Appellees were further permitted to show that as a result of such conviction appellant served a penitentiary sentence.

Appellant contends that the conviction should have been excluded because it was too remote and also because it was introduced in evidence as proof of the facts upon which it was based, and to show that appellant was a thief and a man of bad character.

The admissibility of a conviction with regard to its remoteness is a matter which rests within the sound discretion of the trial court. 45 Tex.Jur. 234, Sec. 317; Carr v. De Witt, Tex.Civ.App., 171 S.W.2d 388, ref. want merit; York v. Glenn, Tex.Civ.App., 242 S.W.2d 653, no writ history; Bunch v. Texas Employers' Ins. Ass'n, Tex.Civ.App., 209 S.W.2d 657, no writ history; Dillard v. State, Tex.Cr.App., 218 S.W.2d 476; Shipp v. State, 104 Tex.Cr.R. 185, 283 S.W. 520.

Appellant was indicted in May of 1946, for an offense committed on March 25, 1946, but he was not tried and convicted until March 1, 1949, with the final conviction in 1950. It is appellant's contention that the time of the commission of the crime rather than the date of conviction or the date of release from the penitentiary, should be considered in determining whether the conviction was too remote. The trial of the present case was in April of 1957. In most criminal cases in Texas the date considered by the court in determining remoteness is the date of the convicted party's release from the penitentiary. Dillard v. State, Tex.Cr.App., 218 S.W.2d 476; Toms v. State, 150 Tex.Cr.R. 264, 200 S.W.2d 174; Couch v. State, 158 Tex.Cr.R. 292, 255 S.W.2d 223.

In the case of Carr v. De Witt, Tex.Civ.App., 171 S.W.2d 388, 390, the court stated:

'Some authorities hold that ten or more years subsequent to a conviction is sufficient time to make the question too remote. 45 Tex.Jur. 111, 112, par. 250, and Linz v. Skinner, 11 Tex.Civ.App. 512, 32 S.W. 915.'

In the case of Bernard's, Inc., v. Austin, 300 S.W. 256, writ refused, the Dallas Court of Civil Appeals held that the time of confinement in the penitentiary could be taken into account as a portion of the period of time required to create the presumption of reformation on which rests the rule of evidence knows as the 'doctrine of remoteness.' We have not found, nor have we been cited to, any Texas case which holds that the date from which the computation is made should be that of the date of the commission of the offense rather than the date of the conviction or date of release from the penitentiary. The authorities usually refer to the date of conviction in civil cases in determining the question of remoteness. We are of the opinion that the conviction of appellant was not too remote and that in any event the trial court did not abuse its discretion in admitting evidence of such conviction.

Appellant cites numerous authorities which hold that a conviction for a crime can not be introduced for the purpose of establishing facts upon which a subsequent civil suit based. Illustrative of the authorities cited by appellant is the case of Smith v. White, Tex.Civ.App., 216 S.W.2d 672, 675, writ ref., n. r. e., in which this Court, through Chief Justice Monteith, stated:

'The general rule with regard to the admissibility of a judgment of conviction in a criminal prosecution is stated in 31 A.L.R. 262, in which it is said that 'the rule supported by the great weight of authority is to the effect that a judgment of conviction or acquittal rendered in a criminal prosecution cannot be given in evidence in a purely civil action to establish the truth of facts on which it was rendered'.' (Emphasis supplied)

In those cases character as such was not in issue. In the instant case the character of appellant was placed in issue. Testimony had been introduced to show appellant's good character, reputation and trustworthiness. Appellees had the right to rebut such testimony. It is well recognized that in civil as well as criminal cases a prior conviction of a crime involving moral turpitude is admissible to impeach a witness whose character for truth and veracity is in issue. See Kennedy v. International Great Northern Ry., Co., Tex.Com.App., 1 S.W.2d 581; Texas & N. O. R. Co. v. Parry, Tex.Com.App., 12 S.W.2d 997; Texas Employers' Ins. Ass'n v. Curry, Tex.Civ.App., 290 S.W.2d 767, error ref., n. r. e. There seems to be no valid reason why the character of a party to a suit who is testifying cannot be attacked when his character is in issue by introduction of a judgment of conviction for a felony involving moral turpitude in the same manner as a witness's character for truth and veracity may be impeached. While it is true that appellant did not take the witness stand until called by appellees, nevertheless he was a witness and in addition to that his character had been placed in evidence by him through the testimony of other witnesses prior to the introduction of the evidence of the conviction. In Lasater v. State, 88 Tex.Cr.R. 452, 227 S.W. 949, involving a case in which the appellant had put in issue his reputation both for truth and veracity and as being a peaceful, lawabiding citizen, the court stated: 'Proof that one has been convicted of a felony is admissible when the character of such person has become a legitimate issue.'

Appellant is seeking a license from an agency of the State of Texas. Thus the parties in the present suit and in the criminal prosecution are in effect identical. Article 21.07-1, Sec. 12(a), authorizes the denial of a license to a person who is not of good character (Subsec. 10) or who has demonstrated a lack of trustworthiness (Subsec. 5). Appellant testified that as an insurance counselor he was responsible to the purchaser, thea he sells his services to the purchaser in exactly the same way as a lawyer sells his services; that the purchaser must be able to rely upon and place complete trust in the counselor and that such relationship is fiduciary and if the counselor is dishonest he can take advantage of his client.

It is our opinion that anything reasonably bearing upon appellant's character and trustworthiness was admissible since his character was a primary issue in the case. The conviction, though not conclusive, was a circumstance which the jury had a right to consider in connection with other testimony. There is a close analogy between this case and disbarment proceedings in which courts have held that prior convictions may be considered as evidence of character in determining whether a lawyer should be licensed or permitted to retain a license once obtained from the court. See People ex rel. Hirschi v. Payson, 1905, 215 Ill. 476, 74 N.E. 383; state ex rel. Sorenson v. Scoville, 1932, 123 Neb. 457, 243 N.W. 269.

Appellant's Point of Error No. Two is to the effect that the court erred in admitting into evidence three judgment taken against appellant. Appellant's running objection to the introduction of testimony relative to his conviction did not extend to the civil judgments later introduced. The judgment in favor of Halliburton Oil Cementing Company (Exhibit 44), was objected to only on the ground that it was irrelevant and immaterial. It was, however, material and relevant in connection with establishing appellant's character and financial responsibility.

The second judgment (Exhibit 45) was taken by one Roy B. Smith against one Homer B. Adams in 1947 in Dallas County for the sum of $128.50. Appellant didn't remember such judgment, but supposed it was in connection with the failure of his business. Appellant objected to the introduction of the judgment if it was offered for the truth of the matters contained therein, which objection was overruled. The evidence raised the inference that appellant was the defendant in such judgment. The law is well settled that 'A judicial record is always admissible to prove the fact that a judgment has been rendered, the time of its rendition and the terms and effect of the judgment * * * the record may not be introduced to establish the facts on which a judgment was based.' 32 C.J.S. Evidence Sec. 636, pages 488-489.

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