Aetna Cas. & Sur. Co. v. Kuhl

• Decision Date: 11 August 1983
• Docket Number: No. 61,61
• Citation: 296 Md. 446,463 A.2d 822
• Parties: AETNA CASUALTY & SURETY COMPANY v. Barry A. KUHL et al.
• Court: Maryland Court of Appeals

Page 446

296 Md. 446

463 A.2d 822

AETNA CASUALTY & SURETY COMPANY v. Barry A. KUHL et al.

No. 61.

Court of Appeals of Maryland.

Aug. 11, 1983.

Thomas E. Lynch, III, Baltimore (James R. Eyler and Miles & Stockbridge, Baltimore, on brief), for appellant.

Daniel M. Clements, Baltimore (Samuel O. Jackson, Jr. and Israelson & Jackson, P.A., Baltimore, on brief), for appellees.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

COLE, Judge.

The questions presented in this case are whether a conviction for assault and battery is admissible in a subsequent civil action to assert the facts arising out of the same incident and whether a signed written statement given to police in the criminal action and testimony of a police officer as to the statement are admissible in the civil action when the person who made the statement does not testify.

The parties submitted the case to the Court of Special Appeals on an agreed statement of the facts from which we distill the following events and facts to place these issues in proper focus. Aetna Casualty and Surety Company had issued two policies of insurance to Sellers Sales and Service, Inc., an automobile dealership which employed Leonard Richard Prahl as a salesman, and which made available to Prahl an automobile for business use. Prahl was operating the vehicle owned by Sellers at the time of the incident which is the subject of this litigation. Each policy of insurance provided coverage for bodily injuries sustained during an "occurrence" and each policy defined "occurrence" to mean "an accident ..., which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured."

The parties further agreed that the following evidence was adduced at trial. In the early morning hours of August 7, 1977, Prahl, operating an automobile owned by his employer, Sellers, offered a ride to Ocean City to Barry Kuhl and Stanley Beutelspacher. Prahl later picked up two women hitchhikers. A short while thereafter Prahl stopped on the shoulder of the highway so that everyone could relieve himself. While the car was parked an altercation occurred between Prahl and Kuhl, resulting in Prahl being knocked to the ground. Prahl got up, ran to the vehicle, and sped off eastbound on U.S. 50, leaving his four passengers stranded on the shoulder of the highway.

The two young women and Kuhl and Beutelspacher began to walk eastbound on the shoulder of U.S. 50, hitchhiking as they went, with the two women walking backwards facing the traffic and the two men walking some distance ahead of them with their backs to the traffic. Several minutes after he had sped from the scene in an eastbound direction, Prahl, apparently having gone "full circle" on U.S. Route 50, was headed eastbound toward the pedestrians. The women were able to get out of the way but the men were struck. Prahl left the scene.

Prahl was later located out of town by the police and was persuaded to return. He signed a written statement in which he admitted striking the men but asserted that it was an accident. Thereafter, he was arrested and convicted in Dorchester County in the District Court of Maryland for assault and battery.

Kuhl and Beutelspacher instituted suit against Prahl and Sellers Sales and Services, Inc. in the Circuit Court for Anne Arundel County, but while that suit was pending Aetna Casualty and Surety Company instituted a declaratory judgment action in the same court seeking a determination of whether insurance coverage existed under the two policies of insurance for injuries sustained by the two men. The circuit court stayed the pending tort suit and the declaratory action was tried before a jury in the Circuit Court for Anne Arundel County. ¹ The jury returned a verdict for Aetna. Kuhl and Beutelspacher appealed and the Court of Special Appeals reversed the judgment and remanded the case for a new trial, Kuhl v. Aetna Casualty and Surety, 51 Md.App. 476, 443 A.2d 996 (1982), holding that the circuit court improperly admitted into evidence copies of Prahl's convictions for assault and battery but properly excluded Prahl's written statement and testimony concerning it. Aetna petitioned for certiorari and Kuhl and Beutelspacher answered and filed a conditional cross-petition. We granted both petitions.

The thrust of Aetna's declaratory judgment action was to establish that Prahl operated the automobile with the intention of striking Kuhl and Beutelspacher. This fact would exclude the "occurrence" from coverage under the policies. Thus, Aetna sought to introduce evidence of Prahl's criminal convictions for assault and battery of Kuhl and Beutelspacher. The trial court admitted this evidence over objection. The Court of Special Appeals held that this was error. We agree with the Court of Special Appeals.

It is a well-settled rule in Maryland that a criminal conviction is inadmissible to establish the truth of the facts upon which it is rendered in a civil action for damages arising from the offense for which the person is convicted. Eisenhower v. Balto. Transit Co., 190 Md. 528, 59 A.2d 313 (1948); Galusca v. Dodd, 189 Md. 666, 57 A.2d 313 (1948); Insurance Corp. v. Sherby, 165 Md. 1, 165 A. 809 (1933); Pugaczewska v. Maszko, 163 Md. 355, 163 A. 205 (1932); Balto. & Ohio R. Co. v. Strube, 111 Md. 119, 73 A. 697 (1909).

We explained the rationale behind this rule in Sherby:

The reasons for this exclusion of the judgment in a criminal case as evidence of the plaintiff's claim against the traverser are various. There is a weighty difference in the parties, objects, issues, procedure, and results in the two proceedings with different rules with respect to the competency of the witnesses and the relevancy, materiality, and weight of the testimony. In a civil proceeding, the act complained of is the essential element, but in a criminal prosecution it is the intent with which the act is done. [Id. 165 Md. at 7, 165 A. 809 (citations omitted).]

The majority of our sister states have adopted this rule either by statute or case law. See e.g., American Fire etc. Service v. Williams, 171 Cal.App.2d 397, 340 P.2d 644 (1959); Brown v. Moyle, 133 Colo. 29, 290 P.2d 1105 (1955); Eggers v. Phillips Hardware Co., 88 So.2d 507 (Fla.1956); Smith v. Goodwin, 103 Ga.App. 248, 119 S.E.2d 35 (1961); Montgomery County v. Crum, 199 Ind. 660, 161 N.E. 251 (1928); Lipman Bros. v. Hartford Accident & Indemnity Co., 149 Me. 199, 100 A.2d 246 (1953); Bibbs v. Fidelity Health & Accident Co., 71 S.W.2d 764 (Mo.App.1934); Moore v. Young, 260 N.C. 654, 133 S.E.2d 510 (1963); Gray v. Grayson, 76 N.M. 255, 414 P.2d 228 (1966); Stover v. Yoakum, 69 Ohio L.Abs. 51, 109 N.E.2d 877 (Ohio App.1952); Dover v. Smith, 385 P.2d 287 (Okl.1963); Nowak v. Orange, 349 Pa. 217, 36 A.2d 781 (1944); Frierson v. Jenkins, 72 S.C. 341, 51 S.E. 862 (1905); Smith v. Phillips, 43 Tenn.App. 364, 309 S.W.2d 382 (1956); State v. Benavidez, 365 S.W.2d 638 (Tex.1963); Smith v. New Dixie Lines, 201 Va. 466, 111 S.E.2d 434 (1959); Forney v. Morrison, 144 W.Va. 722, 110 S.E.2d 840 (1959); Cf. Travelers Indemnity Co. v. Walburn, 378 F.Supp. 860 (D.C.1974); Reid-Elliott Motors v. Lee, 94 So.2d 160 (La.App.1957).

Nevertheless, Aetna points to Wald v. Wald, 161 Md. 493, 159 A. 97 (1931), as support for its contention that the lower court erred in excluding copies of the convictions. In Wald a woman sued her husband for a divorce alleging abandonment. The court allowed into evidence, without objection, testimony that the husband had been convicted several times for desertion and non-support of the wife. Wald is distinguishable from the case at hand because the testimony concerning the husband's prior conviction was admitted without objection. Such is not the case here. Kuhl and Beutelspacher vigorously objected to the admission of the convictions but the trial court allowed them into evidence anyway.

We conclude, therefore, that in this jurisdiction a judgment of conviction in a criminal case is not admissible in a civil case as evidence of the facts upon which it is based. The parties to the criminal prosecution are different. The rules of evidence are different and the purposes and objects sought to be achieved are different. It was reversible error for the trial court to have admitted, over objection, in Aetna's case-in-chief, the certified copies of the convictions.

Kuhl and Beutelspacher, contrary to Aetna's view, sought to have Prahl's written statement, as well as his oral statement to the Maryland State Police, offered into evidence because, they contend, such statements show that Prahl's striking them with the automobile was an accident and thus the insurance policies cover the occurrence. They argue that Prahl's statements are not hearsay or in the alternative, fall within one of the exceptions to the hearsay rule, namely, state of mind, business records, admission of party opponent, or declaration against interest. Again we agree with the conclusion of the Court of Special Appeals.

McCormick defines hearsay as "testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter." C. McCormick, Law of Evidence, § 246, p. 584 (2d ed. 1972). The rule has been adopted by virtually every state due to the important policy of judicial fairness which it represents:

The hearsay rule ... is based on experience and grounded in the notion that untrustworthy evidence should not be presented to the triers of fact. Out-of-court statements are traditionally excluded because they lack the conventional indicia of reliability: they are usually not made under oath or other circumstances that impress the speaker with the solemnity of his statements; the declarant's word is not subject to cross-examination; and he is not...