State Farm Mutual Auto. Ins. Co. v. Worthington

• Decision Date: 13 December 1968
• Docket Number: No. 19194.,19194.
• Citation: 405 F.2d 683
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Corporation, Appellant, v. Ruby WORTHINGTON, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

405 F.2d 683 (1968)

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Corporation, Appellant, v. Ruby WORTHINGTON, Appellee.

No. 19194.

United States Court of Appeals Eighth Circuit.

December 13, 1968.

Fred F. Wesner, of Wesner, Wesner & Meyer, Sedalia, Mo., for appellant.

James O. Turner, of Downs & Pierce, St. Joseph, Mo., for appellee; Don Pierce, St. Joseph, Mo., on brief.

Before BLACKMUN, GIBSON and HEANEY, Circuit Judges.

FLOYD R. GIBSON, Circuit Judge.

The crucial issue in this garnishment proceeding is whether a plea of guilty to a manslaughter charge is a conclusive admission of the commission of an intentional act, not subject to explanation in a subsequent civil proceeding.

Senior Judge Richard M. Duncan of the United States District Court for the Western District of Missouri, in a case tried to the court, a jury having been waived, ruled a plea of guilty is not conclusive and on the evidence adduced entered judgment against the garnishee for $25,000.¹ A timely appeal was filed.

The plaintiff Ruby Worthington in a diversity case filed in the United States District Court for the Western District of Missouri secured a judgment for $25,000 against the defendant Clifford Stevens for negligently and carelessly killing her minor son, Galen Worthington. Garnishment in aid of execution was issued against the State Farm Mutual Automobile Insurance Company, which had issued a personal and farm liability policy² to defendant Stevens and other members of his family.

In addition to the issue above stated, which requires an analysis of the applicable cases, the appellant garnishee also raises the issue of the sufficiency of the evidence, which we think patently is without merit under Rule 52(a), Fed.R. Civ.P. The finding of the trial court to the effect that the killing of Galen Worthington was unintentional is not "clearly erroneous", if the judicial admission is not conclusive; and if the judicial admission is conclusive the plaintiff must fail in her garnishment proceeding as the case turns on the admissibility of the defendant's oral testimony regarding the facts surrounding the occurrence and the reason for his plea of guilty.

The tragic facts giving rise to the controversy commenced on October 7, 1965. Defendant Stevens had placed a large number of watermelons in the front yard of his home for the purpose of sale. On hearing a noise at approximately 10:30 that evening in the direction of his melon pile, he investigated and saw two boys get out of a car and run towards the watermelons. They hesitated on seeing him, and then with alacrity retreated to their car and took off in a northerly direction. Stevens went back into his house, got his .22 caliber rifle, loaded it and went out to wait in his car, which was parked in the front yard. About 11 p. m. a car without lights approached from the north and slowed down at his driveway, allowing three boys to jump off the car and head for the melon pile. Before they reached the melons, Stevens hollered for them to stop. The boys then retreated back to the highway and ran south on the highway following their car which took off without them in a southerly direction.

When the boys were approximately 200 feet down the road, Stevens fired four or five shots at a 60° to 70° angle between two Chinese elms located on his property south of where he was standing. Stevens testified he did not shoot at the boys but rather in a "southwesterly direction and high." Stevens' 17-year old son, Larry, then came out of the house. They got into Larry's car and drove down the road to see where the boys went and to call the sheriff if they could catch up with the boys. About 500 feet south of their home they saw a boy, who turned out to be Galen Worthington, lying on his face along the gravel shoulder of the highway. He had a mark over his eye. Stevens said, "We just figured he had cut a gash across his eye and knocked hisself sic out. Knocked the wind out of hisself sic." They picked up the Worthington boy, took him back to their house and called a doctor and the authorities. After the authorities responded, Worthington was taken to a hospital but was found to be dead on arrival. Stevens said he did not know of the death until he heard an early morning newscast concerning it.

Stevens testified he did not aim at or intend to shoot the Worthington boy but only intended to fire the shots in the air in a southerly direction along his side of the highway to frighten the boys and that apparently a bullet had deflected or ricocheted from a tree limb. Visibility was poor, 50 to 100 feet.

A neighbor living on the same side of the road approximately 700 feet south of Stevens' place, heard the shots that night, heard the bullets hit his house, and upon examination the next morning found two bullet marks on his house located about 10 feet from the ground. The neighbor's house was set further back from the road than Stevens' house, which fact corroborates Stevens' testimony that he was not firing at the boys.

Stevens subsequently was charged with first degree murder. The charge was later reduced to manslaughter and Stevens pleaded guilty on April 11, 1966 to the manslaughter charge. He said he pleaded guilty because his attorney advised it and that his attorney had negotiated a deal with the prosecutor and apparently with the court for a bench parole of seven years and, "Because I had a family at home, some little children who needed their daddy there and we had a deal worked out." The temper of the community was understandably high because of the tragedy and this fact also influenced his decision to plead guilty. Stevens was sentenced to seven years in the penitentiary but was immediately given a bench parole for a like number of years.

The language of the manslaughter charge is so phrased as to support a first degree murder charge. It reads in part:

"That Clifford Stevens * * * did willfully, unlawfully and feloniously on purpose make an assault upon one Gail L. Worthington with a loaded * * * repeating .22 caliber rifle, and then and there, feloniously, willfully and on purpose did discharge and shoot said * * * rifle at and upon the body of said Gail L. Worthington thereby feloniously inflicting a mortal wound * * *."

Defendant Stevens in pleading guilty told the court that he had talked the matter over with his attorney and that he was guilty as charged in the information.

The exclusionary clause relied on by the garnishee in defending the garnishment action is unambiguous and clearly states that intentionally caused bodily injury is not covered by the policy. The dispositive question is whether Stevens intentionally killed the Worthington boy. He is charged with a willful killing in the manslaughter information, but his testimony as to the actual facts would certainly be relevant evidence upon which the trier of facts could find that the fatal wounding of the Worthington boy was unintentional. Garnishee questions the competency of Stevens' testimony, asserting that Stevens is bound by his judicial admission that he willfully and intentionally wounded Worthington and that he and the plaintiff are severally and jointly precluded and collaterally estopped to deny that the killing of Worthington was directly due to the intentional acts and conduct of Stevens.

Garnishee correctly points out that in a garnishment proceeding the injured party in an action against the insurer stands in the shoes of the insured and "his rights are no greater and no less than the insured's would have been in an action between the insured and the insurer * * *." Meyers v. Smith, Western Casualty and Surety Company, garnishee, 375 S.W.2d 9, 14, 15 (Mo. 1964). But, this principle does not resolve the factual issue of whether the killing was intentional or the legal issue of the effect of the judicial admission in the criminal case.

Garnishee in part relies on a line of cases holding that judicial admissions are conclusive upon their maker. Johnston v. United States, 254 F.2d 239 (8 Cir. 1958); Maye v. Pescor, 162 F.2d 641 (8 Cir. 1947) and Wiget v. Becker, 84 F.2d 706 (8 Cir. 1936). These and similar cases hold that judicial admissions are binding for the purpose of the case in which the admissions are made including appeals. This does not make the same judicial admissions conclusive and binding in separate and subsequent cases. The purpose of a judicial admission is that it acts as a substitute for evidence in that it does away with the need for evidence in regard to the subject matter of the judicial admission. IX Wigmore, Evidence § 2588 (3rd ed. 1940)....