Liverpool & London & Globe Ins. Co. v. Wright

• Decision Date: 13 October 1915
• Citation: 179 S.W. 49,166 Ky. 159
• Parties: LIVERPOOL & LONDON & GLOBE INS. CO. v. WRIGHT ET AL.
• Court: Kentucky Court of Appeals

179 S.W. 49

166 Ky. 159

LIVERPOOL & LONDON & GLOBE INS. CO. v. WRIGHT ET AL.

Court of Appeals of Kentucky.

October 13, 1915

Appeal from Circuit Court, Graves County.

Action by B. W. Wright and another against the Liverpool & London &amp Globe Insurance Company, consolidated with actions by the same plaintiffs against the Old Colony Fire Insurance Company, against the Citizens' Fire Insurance Company and against the People's National Fire Insurance Company. Judgment was for plaintiffs, and defendants moved for a new trial, which was denied, and they appeal. Reversed.

M. B Holifield and Bunk Gardner, both of Mayfield, and Leslie Hindman, of Clinton, for appellants.

W. J Webb and Robbins & Thomas, all of Mayfield, and Sea & Via, of Clinton, for appellees.

HURT J.

The appellees, B. W. Wright and V. E. Allen, were partners, and engaged in the business of buying, prizing, and selling tobacco, in Mayfield, Ky. under the firm name and style of B. W. Wright, and, as such, occupied for the purposes of their business a barn, which was the property of G. R. Allen and W. A. Usher. The appellants, Liverpool & London & Globe Insurance Company, Old Colony Fire Insurance Company, Ctizens' Fire Insurance Company, and People's National Fire Insurance Company, each issued to the firm of B. W. Wright a policy of insurance upon the tobacco in the barn, insuring it against destruction or damage by fire. The owners of the barn also carried insurance against damage from fire upon the barn, but in what companies it does not appear. The barn and the greater part of its contents were consumed by fire, and thereafter, the appellants having declined to pay the losses on account of the destruction of and damages by fire to the tobacco, the appellees filed a suit against each of them to recover the damages which were insured against by reason of the policies. A separate suit was filed against each of the appellants, and answers and other pleadings were filed in each of the cases until the issues were made. Each of the answers presented substantially the same defense against a recovery. The defense relied upon was the allegation that the appellees had willfully set fire to the barn and the stock of tobacco which was contained in it and caused the barn and tobacco to be burned, for the fraudulent purpose of collecting the insurance carried upon the tobacco. This defense was controverted by reply in each case. Thereafter the four suits were consolidated and tried at the same time and before the same jury. The trial resulted in a disagreement of the jury and a continuance of the case. At a subsequent trial the jury returned a verdict against the appellants for a portion of the amount of the insurance, and the court rendered a judgment accordingly, but upon an appeal to this court the judgment was reversed, and the consolidated cases remanded for further proceedings.

Thereafter each of the appellants tendered and offered to file an amended answer, in which it was alleged that since the pendency of the litigation an indictment had been returned against the appellee B. W. Wright in which he was charged with the crime of willfully and unlawfully setting fire to and causing to be burned the tobacco house or warehouse in which the tobacco of the appellees was stored, and that there was insurance upon the house, being the crime denounced by section 1169, Kentucky Statutes, and that he had been put upon trial upon the indictment, and convicted and sentenced to a term in the penitentiary, that he had appealed from the judgment of conviction to this court, and the judgment was affirmed, and that the contents of the barn, on account of the destruction of which by fire the appellees were maintaining the suits, were consumed by and in the same fire which destroyed the barn, and for the setting of which the appellee Wright had been tried and convicted, and pleaded the judgment of the commonwealth of Kentucky against B. W. Wright as a complete bar to recovery by appellees in these consolidated suits. The appellees objected to the filing of these amended answers, and the court sustained their objections and refused to allow them to be filed, to which the appellants each saved an exception.

Thereafter another trial was had before the court and a jury, and at this trial a large number of witnesses were introduced and evidence heard upon the issues made as to the amount and value of the tobacco which was burned and damaged, and as to whether or not the barn was set fire to by the appellees and the contents caused to be burned by them or either of them. The trial resulted in a verdict by the jury in favor of the appellees, and upon this verdict the court rendered a judgment in favor of appellees against the Citizens' Fire Insurance Company for $1,000, the Old Colony Insurance Company for $1,000, the People's National Fire Insurance Company for $1,000, and the Liverpool & London & Globe Insurance Company for $2,000. The appellants filed grounds and moved the court to grant them a new trial, which was refused, and to which they excepted, and they have now appealed to this court.

A reversal of the judgment is sought upon the following grounds:

First. Because of misconduct of appellees' attorneys in the argument of the case before the jury.

Second. Because of the misconduct of the attorneys for the appellees in their efforts to wrongfully influence the jury in its decision upon the issues of the case.

Third. Because of error of the court in permitting the appellees to read as evidence to the jury the transcript of the evidence given by Goldie Ford upon a former trial.

Fourth. Because of errors made by the court in its rulings upon the admission and rejection of evidence offered upon the trial.

Fifth. Because the court erred in not permitting the appellants to file their amended answers, in which they relied for a defense upon the judgment which adjudged B. W. Wright to be guilty of setting fire to and burning the barn and tobacco.

Sixth. Because of the misconduct of the jury.

Seventh. Because the verdict was flagrantly against the evidence, indicating that the jury was actuated by passion or prejudice.

Eighth. Because of newly discovered evidence.

Ninth. Because the jury, after being ordered to be kept together in the custody of the sheriff, were permitted to separate.

The contention of the appellants that the court erred to their prejudice in overruling their motion to file the amended answers, in the fifth ground for a new trial will be first considered, because, if the judgment therein pleaded and relied upon as a bar to appellees' recovery constituted such bar, it completely disposes of the case, and no further questions need be considered. It will be borne in mind that the original answers presented the defense that the appellees had willfully burned the barn and its contents, and there is no doubt that such is a good and sufficient defense, if supported by the necessary evidence, to the cause of action stated by appellees in their petitions. It may also be conceded that, if one of the parties willfully burned the barn and its contents, they could not as partners recover upon the policies of insurance. The conviction of the crime denounced by section 1169, Kentucky Statutes, based upon the charge in the indictment that B. W. Wright and others associated with him willfully and unlawfully conspired together to do so, and in furtherance of such conspiracy set fire to and burned the barn, was had in an action by the commonwealth of Kentucky against B. W. Wright, and in which neither the appellants nor the other partner, Allen, were parties, either of record or otherwise. The proceeding by the state was for the purpose of redressing a wrong which Wright had committed against it. If the trial of Wright upon the indictment had resulted in an acquittal, could he and Allen then have offered the judgment of acquittal as a bar to the defense of appellants that appellees had themselves burned the barn and its contents? A mere statement of the proposition is its answer. The appellants could not be bound by the judgment pronouncing Wright not guilty of the crime charged in the indictment, because they were not parties to the action and had no control of the proceedings. Can one of whom a recovery in damages is sought for an alleged assault or battery plead a judgment of acquittal upon an indictment based upon the same facts, in bar of the plaintiffs' recovery? Or could one seeking the recovery of damages for an assault and battery plead a judgment of conviction of the defendant upon an indictment based upon the same facts, in bar of defendant's plea of son assault demesne, or a plea traversing the assault and battery? In the first instance, such judgment could not be pleaded, because the plaintiff was not a party to the action in which the judgment was rendered, and, in the second instance, it should not be allowed, because the plaintiff was not in any wise prejudiced, nor any right of his determined by the judgment, nor would he have been prejudiced, if the judgment had been one of acquittal, and not a conviction. To hold that the judgment of conviction against B. W. Wright was a bar to appellees' cause of action in the case at bar would have been to estop the appellees to assert their cause of action. The rule is that estoppels must be mutual. Bridges v. McAlister, 106 Ky. 791, 51 S.W. 603, 21 Ky. Law Rep. 428, 45 L. R. A. 800, 90 Am. St. Rep. 267; Chiles v. Conley, 2 Dana, 21.

In 23 Cyc. 1238, the doctrine is thus stated:

"It is a rule that estoppels must be mutual; and therefore a party will not be concluded against his contention by a former judgment unless he could have used it for a protection or as the foundation of a claim, had the judgment been the other

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