Tennessee Odin Ins. Co. v. Dickey
| Decision Date | 17 March 1950 |
| Citation | 190 Tenn. 96,18 A.L.R.2d 1284,228 S.W.2d 73,26 Beeler 96 |
| Parties | TENNESSEE ODIN INS. CO. v. DICKEY et al. 26 Beeler 96, 190 Tenn. 96, 228 S.W.2d 73, 18 A.L.R.2d 1284 |
| Court | Tennessee Supreme Court |
Goodpasture, Carpenter & Dale, Nashville, Pride Tomlinson, Jr., Columbia, for plaintiff in error.
Hopkins & Hopkins and R. K. Woody, of Columbia, for defendants in error.
This case was first tried in the circuit court of Maury County in which Sherman Dickey recovered a judgment against the Tennessee Odin Insurance Company upon a contract of insurance which insured a Dodge automobile truck against loss by fire, etc. The Bank of Columbia held a mortgage on the truck to secure a note due it, and for this reason the suit was brought for the use and benefit of the bank. There was also a recovery of the statutory penalty for failure to pay the amount of the loss within 60 days from the date of the fire. The Court of Appeals affirmed the judgment of the trial court, but held that there was no evidence to warrant a recovery for the amount of the penalty.
The defense interposed in behalf of the insurance company was that the insured, Sherman Dickey, fraudulently procured the truck to be burned. This was in fact the only defense of the company.
The insured was indicted and tried upon the charge of wilfully burning the truck for the purpose of defrauding the insurance company. He was acquitted. When the civil suit came on to be tried counsel for the insurance company gave notice to opposing counsel in open court that they would object to any reference being made to the judgment of acquittal of Dickey in the original court. Following Dickey's testimony in chief the counsel for the insurance company asked him on cross-examination if he did not procure certain persons to burn this truck, to which he answered that he did not.
To rebut the plaintiff's proof, which pointed very strongly to Dickey's guilt, the trial judge over the objection of counsel permitted the introduction of the minutes of the court in the criminal case which showed that he was acquitted of the crime of arson. He instructed the jury that this proof could not be considered as evidence that the plaintiff did not burn the truck, but could only be considered as reflecting upon his credibility. The Court of Appeals held that the introduction of this evidence 'did not constitute reversible error'.
We granted certiorari to consider the question as to the correctness of the trial court and Court of Appeals in ruling upon the admissibility of this evidence. The learned Court of Appeals, in support of its opinion that there was no 'reversible error', relied upon Code Section 10654 which provides that there should be 'no reversal or new trial for errors not affecting the results of the trial'.
It is urged upon us by able counsel that inasmuch as both the trial court and Court of Appeals have rule that the alleged error did not 'affect the results of the trial' that this Court should accept it as conclusive of the question. In most cases it would be highly persuasive, if not conclusive upon us. But not so in the case at bar for the manifest reason that the introduction by the plaintiff, Dickey, of the minutes of the court showing his acquittal of arson resulted in greatly impairing if not destroying the only defense which the insurance company had. Moreover it was an issue between the State and the plaintiff to redress a public wrong; while the present suit is to enforce a private right arising under contract. Ordinarily a witness may be asked upon cross-examination questions as to whether or not he has been guilty of certain crimes involving moral turpitude. His answers are binding upon counsel. Not so in the pending case, first because it was the sole and only defense to the plaintiff's suit and secondly the fact that the State was unable to prove 'beyond a reasonable doubt' that Dickey was guilty of the...
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