Sovereign Camp, W.O.W. v. Gunn

• Decision Date: 26 October 1933
• Docket Number: 7 Div. 195.
• Citation: 227 Ala. 400,150 So. 491
• Parties: SOVEREIGN CAMP W. O. W. v. GUNN.
• Court: Alabama Supreme Court

150 So. 491

227 Ala. 400

SOVEREIGN CAMP W. O. W. v. GUNN.

7 Div. 195.

Supreme Court of Alabama

October 26, 1933

Appeal from Circuit Court, Shelby County; E. P. Gay, Judge.

Action on a policy of life insurance by Katherine R. Gunn against the Sovereign Camp of the Woodmen of the World. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

See also, 224 Ala. 444, 140 So. 410.

Wm. B McCollough and Jim Gibson, both of Birmingham, for appellant.

W. W Wallace and L. H. Ellis, both of Columbiana, for appellee.

BOULDIN Justice.

The action is on a policy of life insurance issued to Willie C Gunn, payable to his wife, Mary M. Gunn.

The controlling issue of fact on the trial was whether the insured was murdered by the beneficiary. Admittedly, if such was the fact, no action lies on the policy, either by the beneficiary, or by the daughter, who brings this suit, as assignee of the policy under written assignment made after the death of the insured.

Defendant introduced in evidence the record of the conviction of Mary M. Gunn for the murder of her husband, Willie C. Gunn. in the circuit court of Talladega county (affirmed on appeal, Gunn v. State, 24 Ala. App. 494, 136 So. 870).

The trial court limited such evidence solely to the impeachment of Mary M. Gunn, as a witness in the case. By statute conviction for crime involving moral turpitude is admissible as going to one's credibility as a witness. Code, § 7722.

The ruling of the trial court in effect excluded the consideration of such conviction as evidence of the fact of the crime.

On the former appeal in this cause (Sovereign Camp W. O. W. v. Gunn, 224 Ala. 444, 140 So. 410, 414) this court considered certain pleas setting up such conviction as conclusive of this issue. Treating such pleas as in effect pleas of res adjudicata, this court said:

"In the case of Interstate Dry Goods Stores v. Williamson, 91 W.Va. 156, 112 S.E. 301, 302, 31 A. L. R. 258, it is said: 'It is uniformly held that a judgment of conviction or acquittal in a criminal case is not proper evidence in a civil case, to establish the facts which were necessary to be established in order to secure such conviction or acquittal. The parties to the criminal prosecution are different. The rules of evidence are different in the two classes of cases, and the purposes and objects sought to be accomplished are essentially different. * * * The criminal proceeding is between the state and the accused party, and seeks vindication of a public right, while in the civil suit the purpose sought is vindication of purely private rights and interests.'-Freeman, Judgments, § 319; Black, Judgments, § 529; R. C. L. (title Judgments) §§ 476-7; Micks v. Mason, 145 Mich. 212, 108 N.W. 707, 9 Ann. Cas. 291, 11 L. R. A. (N. S.) 653, and note.

"To the same effect is the holding in the case of Liverpool & London & Globe Ins. Co. v. Wright, 166 Ky. 159, 179 S.W. 49. And our own court has reached a similar conclusion.

Carlisle v. Killebrew, 89 Ala. 329, 6 So. 756, 6 L. R. A. 617; Jay v. State, 15 Ala. App. 255, 73 So. 137, certiorari denied in 198 Ala. 691, 73 So. 1000."

In Carlisle v. Killebrew, 89 Ala. 329, 334, 6 So. 756, 758, 6 L. R. A. 617, cited above, a verdict of acquittal was presented, but in the opinion it was said: "A verdict and judgment in a criminal case is not generally evidence of the fact upon which the judgment was founded in a civil proceeding. 1 Starkie, Ev. (Sharswood) ^*363-365."

And in Jay v. State, 15 Ala. App. 258, 73 So. 137, 138, also cited, it was said: "Obviously, a judgment in a civil cause could not operate as res judicata in a criminal cause, or vice versa. for the reason that there is no mutuality of parties, and for the further reason that a different degree of proof is exacted in the one than the other;" etc.

While later on in the opinion on former appeal, in dealing with assignments of error 51 and 52, this court held the admissibility of the record of conviction as some evidence of the fact of guilt was not presented, still what was said in the foregoing excerpt tended to support the ruling of the trial court on the second trial.

But, in Page v. Skinner, 220 Ala. 302, 304, 125 So. 36, 38, a civil action by an administrator for money had and received, wherein evidence tended to show the money sued for was the property of decedent, who was murdered and robbed by one Thomas, through whom defendant received the money, this court held: "The general rule is that the proceedings and judgment in a criminal prosecution are not competent evidence in a civil action arising out of the same transaction, save for the single purpose of showing its existence, if that becomes a relevant fact. There are numerous exceptions, however, to this rule, which need not now be stated; it being sufficient to observe that the fact of Thomas' indictment and conviction for the murder of Robbins, in connection with the evidence heretofore stated, was a collateral fact, clearly material, as a circumstance tending to sustain the plaintiff's theory that Robbins was murdered and robbed by Thomas. 15 R. C. L. p. 1000, § 476; Ib. p. 1003, § 479; Jones on Ev. § 590."

In Fidelity-Phenix Fire Ins. Co. v. Murphy, 226 Ala. 226, 146 So. 387, our latest case, a civil action on a policy of indemnity insurance, wherein the insured had been convicted of a willful and fraudulent destruction of the insured property, the record of conviction was held evidence of the fact of guilt.

Appellee's counsel properly and frankly admit that if this Murphy Case is adhered to, a reversal must follow. They insist, however, that it is opposed to the great weight of authority, is unsound in principle, and should be overruled.

If such rule is adhered to, counsel earnestly request this court to further define the probative effect of such evidence, what instructions the jury should be given in weighing such testimony, etc.

Appellant's counsel insist the Murphy Case should not only be followed so far as it goes, but that logically the court should hold the record of conviction conclusive of the issue in this case.

In view of the state of our decisions above reviewed, and the...