Breeden v. Independent Fire Ins. Co.

• Decision Date: 01 December 1975
• Parties: Fred E. BREEDEN et ux., Petitioners, v. INDEPENDENT FIRE INSURANCE COMPANY, Respondent.
• Court: Tennessee Supreme Court

Page 769

530 S.W.2d 769

Fred E. BREEDEN et ux., Petitioners, v. INDEPENDENT FIRE INSURANCE COMPANY, Respondent.

Supreme Court of Tennessee.

Dec. 1, 1975.

Hugh F. LaRue, III, Flynn & Flynn, Knoxville, for petitioners.

David E. Smith, Hodges, Doughty & Carson, Knoxville, for respondent.

OPINION

HENRY, Justice.

This civil action presents for solution the question of the admissibility, in a civil action, of a declaration against penal interest.

I.

This issue arises in the context of a civil suit by insured property owners seeking to recover the full coverage under a standard fire insurance policy, wherein the defendant insurance company's sole defense was arson.

The case was tried to the court and jury and resulted in a verdict for the plaintiff. Upon appeal, the Court of Appeals unanimously reversed.

This controversy stems from the efforts by the defense to present the testimony of an allegedly hired arsonist, and, failing in that, to present his signed confession.

At the conclusion of the plaintiff's proof, the defendant called Donny Simpson, whose name had been alluded to various times during the presentation of plaintiff's proof. It is apparent from reading the record that the trial judge was alerted to the fact that Simpson, a nineteen year old man, was going to testify that he had burned the building as the hired agent of the insured. The trial judge concluded that he was under an obligation to conduct a voir dire examination of this witness, out of the presence of the jury. As a result of that examination, the witness elected to claim his rights under the Fifth Amendment to the Constitution of the United States; he then declined to testify.

Defendant thereupon offered to read the extra-judicial confession of this witness, made on August 27, 1973, after having been given proper Miranda warning, to members of the Knoxville Police Department and signed in the presence of three attesting witnesses. The sum and substance of this confession was that he, and a companion, burned the insured's building, at his request, on the night of June 14, 1972, using gasoline placed in the house for that purpose by the insured. For this act they were paid the sum of $100.00 by the insured, Fred E. Breeden. The defendant insurance company offered this confession in evidence, with proper foundation, but the trial judge ruled it to be inadmissible. It appears in the record marked for identification.

II.

The admissibility of a declaration against penal interest, one of the expanding exceptions to the hearsay evidence rule, has not been addressed by the courts of this jurisdiction. The matter is squarely raised by the assignments of error in this case and we conclude that it is in the public interest and in the best interests of the administration of justice that we recognize this exception and formulate guidelines for its application. We do so, however, only in the context of civil actions.

Preliminarily, and as a predicate for the ensuing discussion, we point out that as a general rule, unsworn extra-judicial declarations by one who is not a party to an action are hearsay and inadmissible. One of the major exceptions to the hearsay evidence rule recognizes declarations against the pecuniary or proprietary interest of the declarant. This rule is bottomed upon the premise that such declarations are reliable because it is contrary to human nature for one to make an assertion at variance with his financial, pecuniary or proprietary best interests.

Any discussion of this fascinating and sometimes frustrating evidentiary rule, or exception, must begin with the famed Sussex Peerage Case, 8 Eng.Rep. 1034 (decided by the House of Lords in 1844), holding that declarations solely of a penal nature were not admissible under any circumstances. ¹

The landmark American Case in Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913). In this criminal action the Court held that the statement of a witness that he committed the murder, for which Donnelly was tried, was not admissible. Justice Holmes, in a ringing dissent, and with unassailable logic, declared:

The rules of evidence in the main are based on experience, logic, and common sense, less hampered by history than some parts of the substantive law. There is no decision by this court against the admissibility of such confession; the English cases since the separation of the two countries do not bind us; the exception to the hearsay rule in the case of declarations against interest is well known; no other statement is so much against interest as a confession of murder . . . 228 U.S. at 277, 33 S.Ct. at 461.

Professor Wigmore called this a 'barbarous doctrine', and, in Vol. 5, Wigmore on Evidence, at Section 1477, went more in detail:

The only practical consequences of this unreasoning limitation are shocking to the sense of justice; for, in its commonest application, it requires, in a criminal trial, the rejection of a confession, however well authenticated, of a person, deceased or insane, or fled from the jurisdiction (and therefore quite unavailable) who has avowed himself to be the true culprit. The absurdity and wrong of rejecting indiscriminately all such evidence is patent . . .

It is therefore not too late to retrace our steps, and to discard this barbarous doctrine, which would refuse to let an innocent accused vindicate himself even by producing to the tribunal a perfectly authenticated written confession . . .

The widely criticized Donnelly doctrine has been rejected in a substantial and increasing number of jurisdictions. See J. Fine, 21 Syracuse L.Rev. 1095 (1970). Brief comment on some of these cases points up the problem and the progress made in its solution.

A most significant case is Sutter v. Easterly, 354 Mo. 282, 189 S.W.2d 284 (Mo.1945). In that case, the witness was not available because he refused to testify on the ground that his testimony would incriminate him. The Missouri Court held the declaration against penal interest to be admissible. The Court reasoned, in part, as follows:

. . . The rule was originally limited to declarations of deceased persons and it is still so limited in some jurisdictions. But we believe sound reasoning supports the doctrine of those decisions holding that whenever the testimony of the witness is unavailable as a practical proposition, his declaration should be received. This is what Wigmore on Evidence defines as the 'Necessity Principle.' We approve the reasoning set forth in Section 1456 of the Third Edition: 'The Necessity Principle, as here applied, signifies the impossibility of obtaining other evidence from the same source, the declarant being unavailable in person on the stand. Whenever the witness is practically unavailable his statements should be received. Death is universally conceded to be sufficient. The Principle of Necessity is broad enough to assimilate other causes; but the rulings upon causes other than death are few. They are ill-judged, so far as they do not recognize the general principle of unavailability. Illness and insanity should be equally sufficient to admit the statements; as well as absence from the jurisdiction. Supervening incompetency through interest stands on the same ground.' 189 S.W.2d at 284.

In Newberry v. Commonwealth, 191 Va. 445, 61 S.E.2d 318 (Va.1950), a written confession of guilt was held to be admissible where the confessor refused to testify upon the grounds of self-incrimination, the Court saying:

It would seem that one who refused to testify because his testimony might incriminate him is considered unavailable as a witness, just as though he were beyond the reaches of the Commonwealth, or had since died. 61 S.E.2d at 326.

An outstanding case with a brilliant opinion by former Chief Justice Traynor of the California Supreme Court is People v. Spriggs, 60 Cal.2d 868, 36 Cal.Rptr. 841, 389 P.2d 377 (Cal.1964). The opinion reads, in pertinent part, as follows:

The statutes do not exclude hearsay declarations against penal interest. Their admissibility must therefore be determined in the light of the principle that 'the purpose of all rules of evidence is to aid in arriving at the truth, (and) if it shall appear that any rule tends rather to hinder than to facilitate this result * * * it should be abrogated without hesitation.' (Williams v. Kidd, 170 Cal. 631, 649, 151 P. 1, 8.)

When hearsay evidence is admitted it is usually because it has a high degree of trustworthiness. (citations omitted). Thus, declarations against pecuniary or proprietary interest are admitted because they are unlikely to be false. (citation omitted). A declaration against penal interest is no less trustworthy. As we pointed out in People v. One 1948 Chevrolet Conv. Coupe, 45 Cal.2d 613, 622, 290 P.2d 538, 55 A.L.R.2d 1272, a person's interest against being criminally implicated gives reasonable assurance of the veracity of his statement made against that interest. Moreover, since the conviction of a crime ordinarily entails economic loss, the traditional concept of a 'pecuniary interest' could logically include one's 'penal interest.' (Compare the theory that admits a third person's confession of a crime on the ground that the crime was also a tort, thus subjecting the declarant to civil liability for damages, a pecuniary interest citations omitted). We have concluded, therefore, that the ruling of the trial court was erroneous insofar as it excludes heardsy declarations against penal interest. . . . 389 P.2d at 381.

Another significant case is People v. Brown, 26 N.Y.2d 88, 308 N.Y.S.2d 825, 257 N.E.2d 16, 43 A.L.R.3d 1407 (1970), wherein the Court held that an admission against penal interest is admissible where material and where the declarant is dead or beyond the jurisdiction of the court and thus unavailable or where he refuses to testify on the ground of self-incrimination.

In Howard v. Jessup, 519 P.2d 913 (Okla.1974), the Oklahoma Supreme Court held that the...