Davidson v. Great Nat. Life Ins. Co.
| Decision Date | 16 September 1987 |
| Docket Number | No. C-5352,C-5352 |
| Citation | 737 S.W.2d 312 |
| Parties | Phyllis J. DAVIDSON, Petitioner, v. GREAT NATIONAL LIFE INSURANCE COMPANY, Respondent. |
| Court | Texas Supreme Court |
Michael F. Pezzuli, (Sifford & Pezzuli), Dallas, William E. Wright (Wright & Patton, P.C.), Houston, for petitioner.
A. Erin Dwyer and Donald Colleluori (Johnson & Swanson), Ernest E. Figari (Figari & Davenport), Dallas, for respondent.
This is a suit to recover on a life insurance policy. Phyllis Davidson, beneficiary under a policy insuring the life of Dauod Alquassab, sued Great National Life Insurance Company claiming that Alquassab was deceased and that she was entitled to the policy proceeds. The trial court, based on jury findings that Alquassab was deceased, rendered judgment for Davidson for $1,000,000, on the face amount of the policy plus $400,000 in interest and attorney's fees. The court of appeals reversed and remanded. 708 S.W.2d 476. We reverse the judgment of the court of appeals and remand the cause to that court for further consideration.
In May 1980, a man identifying himself as Dauod Alquassab applied for an insurance policy on his life from Great National Life Insurance Company (Great National). Although unknown to Great National at the time of the application, Alquassab had previously used the names of David Kassab and David Kay; he was convicted of felony fraud charges under each previous name. Alquassab named Ilan Eiger, his partner in a real estate business, as the beneficiary when Great National issued the policy in June 1980. In September 1980, Alquassab changed the beneficiary designation from Eiger to Phyllis Davidson, his former wife from whom he was divorced in 1968. Alquassab then traveled to Tel Aviv, Israel, in February 1981. Prior to his departure, the record indicates that Alquassab allegedly defrauded First City Bank in Houston, of approximately $1.5 million dollars, and committed additional acts of fraud upon other banking institutions.
On Wednesday, February 11, 1981, a body was discovered approximately 100-200 yards from the hotel where Alquassab was registered. The body, which Davidson claims was Alquassab, had been struck by a car and then dragged face down. Great National was notified of Alquassab's alleged death on February 12; the body was buried the following day, Friday, February 13. After Davidson made a formal claim under the policy to Great National on June 1, Great National rescinded the policy because of Alquassab's alleged fraud in procuring the policy, and refused to pay any beneficiary proceeds to Davidson.
Davidson sued for the amount of the policy; Great National answered, alleging fraud and misrepresentation by Alquassab and a conspiracy to fake Alquassab's death. At trial, the jury found (1) that Alquassab was dead; (2) that Alquassab did not misrepresent his name, occupation, or amount of insurance in force on his life; and (3) that some of Alquassab's representations to Great National were false, but not made with intent to deceive.
The controversy here concerns the testimony of one of Davidson's witnesses, Schmuel Carmelli, a high-ranking Tel Aviv police officer. At the trial, Davidson elicited testimony from Carmelli concerning his initial investigation including Carmelli's inspection of the body outside the hotel, interviews with relatives of Alquassab who identified the body as Alquassab, and conclusions regarding the identity of the body. Although Carmelli did not actually identify the body as Alquassab in the presence of the jury, he stated he was certain he knew the identity. Davidson, through Carmelli, also introduced photographs of the body taken at the morgue.
On cross-examination, Great National attempted to discredit and impeach Carmelli's direct testimony by inquiring about (1) a subsequent report made by the Israeli police to the United States Embassy supposedly casting doubts upon Carmelli's initial investigation, (2) Carmelli's lack of knowledge regarding Alquassab's earlier fraud convictions at the time of his initial investigation, and (3) Carmelli's lack of knowledge concerning a criminal connection between Alquassab and a witness, Reuben Shamash, who identified Alquassab's body for the police at the morgue. Carmelli refused to answer these questions, claiming a privilege that the questions involved matters currently under investigation. Great National also sought to bolster its conspiracy theory by soliciting the identification of the murder suspects. Again, Carmelli refused to answer on claim of privilege although he later testified on redirect that one of Davidson's favorable witnesses--Shamash--was not a suspect.
As the examination of Carmelli continued, Great National objected to his apparent selective use of the privilege and moved the trial court to both strike his testimony and grant a mistrial. The trial court refused although it did recognize the inherent damage from Carmelli's refusal to submit himself to a full and complete cross-examination. The court of appeals reversed and remanded the cause for a new trial based upon its conclusion that Great National was denied an opportunity to fully and fairly cross-examine Carmelli.
Our review begins with Carmelli's purported privilege. The court of appeals correctly recognized that under the provisions of TEX.R.EVID. 502, our courts are compelled to honor a foreign jurisdiction's privilege when that jurisdiction requires certain information not be reported. Cf. Hobson v. Moore, 734 S.W.2d 340 (Tex.1987) (). Davidson, by relying on such a privilege, bore the burden of proving its existence and application. Peeples v. Honorable Fourth Supreme Judicial District, 701 S.W.2d 635 (Tex.1985). The record is devoid of any probative evidence establishing the privilege. Carmelli merely asserted that some answers...
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