Eagle v. Heller

• Decision Date: 17 November 1927
• Parties: EAGLE, STAR AND BRITISH DOMINIONS INS. CO. v. HELLER.
• Court: Virginia Supreme Court

140 S.E. 314

EAGLE, STAR AND BRITISH DOMINIONS INS. CO.

v.HELLER.

Supreme Court of Appeals of Virginia.

Nov. 17, 1927.

Error to Circuit Court, Rockingham County.

Action by Max Heller against the Eagle, Star and British Dominions Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed.

D. O. Dechert, of Harrisonburg, for plaintiff in error.

Chas. A. Hammer, of Harrisonburg, for defendant in error.

PRENTIS, P. This is a case in which a rigid adherence to a general rule and to some judicial expressions would be a reproach to the administration of justice. Max Heller has recovered under a fire insurance policy upon a stock of goods, after he had been convicted under the Virginia statute (Code, § 4436) of willfully burning the same stock of goods with intent to injure the insurer. Heller v. Commonwealth, 137 Va. 782, 119 S. E. 69.

Issue was joined upon the defendant company's plea of the general issue. Among the several grounds of defense in the statement filed by the company are these:

"1. That the fire for the loss from which this suit is instituted was not accidental, but was caused by, or with the connivance of, the insured.

"2. That said fire was caused as aforesaid with intent to defraud the defendant and other insurance companies. * * * "

"7. That defendant was heretofore convicted of the offense of burning the property insured by said policy with intent to defraud the defendant and other insurance companies, and was sentenced by the judgment of the court to under-go confinement in the state penitentiary, which judgment was not reversed or set aside, but said plaintiff has undergone such punishment for said offense."

This plea and these grounds of defense were sufficient to raise the vital issue here involved, but in addition thereto the defendant filed a plea of res judicata which the court, upon motion of the plaintiff, struck out, and thereafter defendant tendered a plea of estoppel, averring the conviction of felony as an estoppel to the maintenance of this action, which the court rejected when tendered.

The trial court, in rejecting these pleas, in the exclusion of evidence offered in support of the same facts alleged therein, and by instructions to the jury, held that the evidence of the conviction was irrelevant, immaterial, and inadmissible upon the issues so raised in this case.

In sustaining an objection to the evidence of the previous conviction, the learned trial judge said:

"The reason of that, gentlemen of the jury, is that the court holds that this man is not now bound by the verdict of the other jury. It is a question for you to decide whether he burned that stock of goods, or, in effect, did it."

Attorney for the company (interposing): "That is one of the questions here."

The court added:

"Yes, sir; that is one of the questions for this jury to decide. So far as that is involved, it is an original question for the jury to decide on the evidence."

And then, by way of emphasis:

"That there may be no misunderstanding on the part of the jury of what I said a moment ago: It is the law that if Max Heller, the plaintiff in this case, was a party to the burning of that stock of goods, that forfeits all of his right to the insurance. There is no doubt about that. But the verdict of the jury in the case in which he was tried on the criminal charge is not proper evidence before this jury. It is for this jury to determine whether he did that"

That there are numerous cases in which it has been unequivocally stated that records in criminal cases are not admissible evidence in civil cases involving substantially the same issues is undoubtedly true.

"The record of a conviction, or of an acquittal, is not, according to a decided preponderance of authority, conclusive of the facts on which it is based in any civil action, nor, ordinarily, is it even evidence of such facts, " is the guarded statement in 2 Freeman on Judgments, § 653.

The same learned commentator thus expresses the reasons for the general rule (section 654):

"The chief reason for excluding the record of a criminal prosecution from evidence in a civil case is that the parties to the two proceedings' are different. One who has been damaged by some criminal act of another has a claim for remuneration, independent of the right of the public to proceed against the offender, and to inflict the penalty prescribed by law. This right to compensation in damages ought not to be, and is not, dependent on the success or failure of the prosecution conducted by the people. If it were, the party most injured would be prejudiced by a proceeding towhich he was not a party, and which he had no power to control. A person convicted of any offense is not estopped by the conviction from disputing the facts on which it is based in a civil action, because his adversary in the civil action would not have been barred if the prosecution had terminated in an acquittal. While the difference in parties and lack of mutuality are a logical and sufficient reason in most cases for this general rule, other reasons given are the different rules of evidence and procedure which prevail in civil and criminal cases and the differing degrees of proof required."

It is perfectly logical to hold in such cases that if the offender has been acquitted in the criminal prosecution, that acquittal should not bind another party who for a personal injury arising out of the same occurrence seeks redress in a civil action; and this because the prosecution may have failed merely because the guilt of the accused was not proved beyond any reasonable doubt. As has been frequently said, the acquittal of one accused of crime is only a finding that his guilt has not been proved beyond a reasonable doubt. This reason, however, seems to fail where there is a conviction, and the fact of guilt (when it is also the precise fact in issue in the civil case) has been judicially determined, because the plaintiff in the civil action is only bound to prove that fact by a preponderance of the evidence. Therefore, as the greater includes the less, we can see no logical reason, considering the question from this point of view, why the conviction should not be admissible, certainly as relevant evidence for the consideration of the ju, ry. While such convictions have been held relevant, many courts, where the effort is made to set up the conviction in a criminal case, either as relevant and persuasive, or as-res judicata, or as an estoppel, have held that the same rule of exclusion applies to convictions as to acquittals, the reason given being that the parties not being the same there is the consequent lack of mutuality. Honaker v. Howe, 19 Grat. (60 Va.) 50; Supervisors v. Norfolk & W. Ry. Co., 119 Va. 787, 91 S. E. 124. It is certainly clear in such cases that the plaintiff who is seeking redress in the civil case for the injury, not having been a party to the criminal prosecution, is not bound by its result. We confess our inability to perceive, however, why the accused person himself should not be held either as bound or affected by the result of the prosecution, if adverse to him. He has had his day in court, with the opportunity to produce his witnesses, to examine and cross-examine the witnesses for the prosecution, and to appeal from the judgment. So that the chief reason for holding that the plaintiff in the civil case is not bound by the prosecution fails as to the defendant, who has once litigated the identical question and had it adversely decided, under conditions most favorable to himself—that is, in a prose cution in which he could not have been convicted unless the decisive fact, his guilt, had been shown beyond a reasonable doubt.

These views are not novel, even if contrary to the general trend of decision, because all of the precedents on the subject are not consistent with the general rule which Mr. Freeman has stated. There are, as he shows, exceptions, limitations, and contrary decisions. 2 Freeman on Judgments (5th Ed.) § 655; 1 Freeman on Judgments, § 319; 4 Jones Com. on Ev. (2d Ed.) § 1817 et seq.

Among the English decisions we find the case of Rex v. Parish of St. Pancras, Peake's N. P. Cas. 286. There was an Indictment against the parish of St. Pancras for not repairing one side of a road (the other side lying in Islington parish). Lord Kenyon said that had there been an acquittal of St. Pancras parish, the record could not have been evidence for the parish of Islington. "The reason why it would not have been evidence for them is because some other parties might have indicted them, and those parties could not be bound by this record. There are many cases where a record is evidence against a person, though it is not so for him." It is there held that the record of conviction of St. Pancras parish was conclusive evidence against the parish of Islington. It is said by way of caution, that if the parish of Islington could show fraud, it would be different, but that, unexplained, the record of conviction was conclusive evidence against the parish of Islington.

The question has been the subject of a number of annotations: 103 Am. St. Rep. 20; 11 L. R. A. (N. S.) 654; 31 L. R. A. (N. S.) 670.

The latest of these which we have seen is in 31 A. L. R. 261. As illustrations of what the annotator there calls the minority rule, these cases are pertinent:

In Bankston v. Folks (1886) 38 La. Ann. 267, it is held that an indictment and verdict convicting the defendant of shooting the plaintiff were admissible in an action for damages for the shooting, the court saying that while such evidence was not conclusive of the plaintiff's right to recover, it "was proper that the jury should consider the result of the criminal prosecution for an offense for the legal consequences of which damages were claimed from its perpetrator."

In Anderson v. Anderson (1826) 4 Me. (Greenl.) 100, 16 Am. Dec. 237, a husband had been convicted of adultery, and it was held in an action for divorce for...