North River Ins. Co. v. Walker

• Decision Date: 03 December 1914
• Citation: 161 Ky. 368,170 S.W. 983
• Parties: NORTH RIVER INS. CO. v. WALKER.
• Court: Kentucky Court of Appeals

170 S.W. 983

161 Ky. 368

NORTH RIVER INS. CO. v. WALKER.

Court of Appeals of Kentucky.

December 3, 1914

Appeal from Circuit Court, McCracken County.

Action by John N. Walker's administratrix against the North River Insurance Company. From a judgment for plaintiff defendant appeals. Reversed.

Wheeler & Hughes, of Paducah, and Matthew Walton, of Lexington, for appellant.

Sam H Crossland and Oliver & Oliver, all of Paducah, for appellee.

HANNAH J.

On March 13, 1912, the North River Insurance Company issued to John N. Walker a policy of fire insurance in the sum of $300 covering his household furniture. On March 16, 1912, three days thereafter, the house in which Walker was living burned, and Walker and his wife were arrested, charged with arson, and upon an examining trial in the Paducah police court they were bound over to await the action of the grand jury. The grand jury of McCracken county returned an indictment against them, but Walker died before a trial could be had, and thereupon the indictment against his widow was dismissed. On March 15, 1913, Walker's widow, as administratrix of his estate, brought this suit upon the policy. The company defended upon the ground that Walker himself burned the insured property. Upon a trial, the jury returned a verdict for the plaintiff; and the insurance company appeals.

1. It is contended by appellant that the trial court erred in refusing to permit it to prove by a stenographer, who reported the testimony given upon the examining trial of the Walkers in the Paducah police court, what the testimony of Capt. J. J. Woods, chief of the Paducah fire department, was upon that trial. Appellant showed that Capt. Woods had died since giving the testimony in question, that the stenographer had reported his testimony in full at the time and made an accurate transcript thereof, and offered to prove by the stenographer, her recollection being refreshed by her notes and transcript, what Capt. Woods testified upon the occasion mentioned. The court sustained plaintiff's objection to this evidence, and of this ruling appellant complains. It is a well-settled rule that whenever necessity exists, such as arises when a witness dies after testifying, the testimony of such witness upon a former trial may be shown upon another trial, by one who heard the original testimony, provided that the issue in the two trials be substantially the same, and provided that the party against whom the evidence is offered upon the second trial cross-examined upon the former trial the witness, since deceased. Greenleaf on Evidence, §§ 163-166; Wigmore on Evidence, §§ 1386-1388.

In determining what constitutes a former trial within the meaning of this rule, it is generally said that the parties in the present action or their privies must have been parties on the former trial, and that the issue upon the two trials must be substantially the same. Kelly v. Connell, 3 Dana, 532; Kean v. Commonwealth, 10 Bush, 190, 19 Am.Dec. 63; O'Brian v. Commonwealth, 6 Bush, 565. But in this respect considerable liberality is exercised. If the party against whom the former evidence is sought to be used was a party to the action in which it was given, and there was a cross-examination by such party of such witness upon the issue involved in the present case, it is not necessarily material that the parties should be precisely the same, where the issue is substantially the same. 16 Cyc. 1088. So in Wigmore on Evidence it is said:

"It is commonly said that the parties to the litigation in which the testimony was first given must have been the same as in the litigation in which it is now offered; but this limitation suffers in practice many modifications, and properly so, for it is not a strict and necessary deduction from the principle. * * * The requirement of identity of parties is only an incident or corollary of the requirement as to identity of issues."

We have been cited to no case holding to the contrary, and have been able to find but one such case. In McInturff v. Insurance Company of North America, 248 Ill. 92, 93 N.E. 369, 140 Am.St.Rep. 153, 21 Ann.Cas. 176, it was held that the testimony of a witness who gave evidence upon the trial of McInturff upon a charge of feloniously setting fire to property which he had insured was not admissible upon the trial of McInturff's action against the insurance company. We do not find the argument of the court in that case convincing and are not disposed to agree with the conclusion reached by it. The weight of authority is to the contrary. In the following cases it was held that the testimony of a witness who gave evidence upon a criminal proceeding for assault, may, in the event of the death of such witness, be admitted upon the trial of a civil action against the defendant to recover damages for such assault, where the witness was cross-examined on the former trial: Gavan v. Ellsworth, 45 Ga. 283; Charlesworth v. Tinker, 18 Wis. 633; Kreuger v. Sylvester, 100 Iowa 647, 69 N.W. 1059. These cases, we think, are in harmony with a common-sense interpretation of the fundamental principles of evidence.

It was proper for the stenographer to use the transcript for the purpose of refreshing her recollection and aiding her memory in testifying as to what Woods stated upon the examining trial mentioned (Wilson v. Commonwealth, 21 Ky. Law Rep. 1333, 54 S.W. 946; Johnson v. Commonwealth, 70 S.W. 44, 24 Ky. Law Rep. 842; Thomas v. Commonwealth, 20 S.W. 226, 14 Ky. Law Rep. 288; Kean v. Commonwealth, 10 Bush, 190, 19 Am.Rep. 63), or to read direct from the transcript of the testimony so given ( Lake v. Commonwealth, 104 S.W. 1003, 31 Ky. Law Rep. 1232, Fuqua v. Commonwealth, 118 Ky. 578, 81 S.W. 923, 26 Ky. Law Rep. 420). The trial court therefore erred in its ruling refusing to allow the witness mentioned to testify concerning the evidence given by Woods upon the examining trial of the Walkers. The issue upon that trial was substantially the same as upon this; i. e., did the Walkers intentionally set fire to the house occupied by them in which the insured goods were stored? And the testimony given by Woods upon that hearing was directly upon that issue, and was sought to be used upon this trial as against the same parties against whom it was then given. Their interest and motive in sifting and testing Woods' testimony then given was the same upon that...