Teslovich v. Fireman's F. Ins. Co.

• Decision Date: 02 October 1933
• Docket Number: 199-1933
• Citation: 110 Pa.Super. 245,168 A. 354
• Parties: Teslovich et ux. v. Fireman's F. Ins. Company, Appellant
• Court: Pennsylvania Superior Court

168 A. 354

110 Pa.Super. 245

Teslovich et ux. v. Fireman's F. Ins. Company, Appellant

No. 199-1933

Superior Court of Pennsylvania

October 2, 1933

Argued April 20, 1933

Appeal by defendant from judgment of C. P., Washington County November T., 1931, No. 408, in the case of George Teslovich alias Teslovitch, and Julia Teslovich, alias Teslovitch, his wife, v. Fireman's Fund Insurance Company of San Francisco, California.

Assumpsit on policy of fire insurance. Before Brownson, P. J.

The facts are stated in the opinion of the Superior Court.

Verdict for the plaintiffs in the sum of $ 402.13 and judgment entered thereon. Defendant appealed.

Error assigned, among others, was refusal of defendant's motion for new trial.

Affirmed.

H. Russell Stahlman, for appellant. -- The plea of nolo contendere must be accompanied by a protestation of innocence in order not to be available in a civil suit. Com. ex rel., District Attorney v. Jackson and Burlingame, 248 Pa. 530.

D. M. Anderson, for appellees.

Before Trexler, P. J., Keller, Cunningham, Baldrige, Stadtfeld, Parker and James, JJ.

OPINION

Cunningham, J.

On February 6, 1931, the defendant insurance company issued its policy indemnifying plaintiffs, the owners by entireties of their home in Donora, Washington County, against loss and damage by fire to an amount not exceeding $ 5,000 upon the house and $ 550 upon their furniture.

During the term of the policy a fire occurred resulting in damage to the building and contents to the extent of $ 804.27, of which the proportionate share of defendant, if liable, would be $ 402.13.

In August, 1931, plaintiffs were jointly indicted upon two counts -- arson and burning personal property with intent to defraud the defendant company. At the trial upon this indictment a nol. pros. was entered as to the wife; the husband withdrew his plea of "not guilty" and the court accepted from him a plea of nolo contendere, upon which he was sentenced to pay the costs and was then paroled for a period of two years.

The action out of which this appeal arose was a civil suit upon the policy, instituted October 26, 1931, to recover from defendant its proportionate share of the loss; the defense interposed was that "the fire resulting in the loss was caused by the fraudulent act or acts, procurement or procurements of the plaintiffs or either of them, for the purpose of defrauding the defendant company."

At the trial counsel for defendant offered in evidence the record of the criminal trial, from which it appeared, inter alia, that one of the plaintiffs, George Teslovich, had entered a plea of nolo contendere to an indictment charging him with having feloniously set fire to the property insured. The objection of counsel for the plaintiffs was sustained by the learned trial judge, Brownson, P. J., upon the ground that the record thus offered was not competent evidence in the trial of the civil action.

The verdict was in favor of plaintiffs for the amount of their claim; defendant's motion for a new trial was dismissed and it has appealed from the judgment entered on the verdict.

Under the single assignment of error and the statement of the question involved, our sole inquiry upon this appeal is whether the record of the criminal trial should have been admitted as an admission of guilt upon the part of one of the plaintiffs.

Our investigation and consideration of the question has convinced us that the comprehensive and scholarly opinion written by the trial judge, in support of the action of the court below in refusing a new trial, amounts to a demonstration of the correctness of the challenged ruling.

We, therefore, approve and adopt the following excerpts from that opinion:

"In sustaining the objection and rejecting the offer, the trial judge was following the rule stated by Rice, P. J., in Com. v. Ferguson, 44 Pa.Super. 626, 628, viz.: 'A plea of nolo contendere, when accepted by the court, is, in its effect upon the case, equivalent to a plea of guilty. It is an implied confession of guilt only, and cannot be used against the defendant as an admission in any civil suit for the same act.'"

After considering the contention of counsel for defendant that the statement just quoted was an obiter dictum, because the question there involved was whether the plea authorized the imposition of a sentence, and after discussing the case of Consolidated Ice Mfg. Co. v. Medford, 18 Dist. Rep. 293, in which a dictum to the contrary may be found, the opinion states that the dictum of this court is in accordance with the general current of authority upon the subject, and continues:

"We have not discovered any other Pennsylvania case in which there was raised for adjudication the specific question under consideration; but the cases in the Supreme Court reports are, so far as they go, in harmony with Commonwealth v Ferguson. In Buck v. Commonwealth, 107 Pa. 486, that court said, quoting from Wharton's Crim. Law, § 533, that this plea 'has the same effect as a plea of guilty so far as concerns the proceedings upon the indictment,' and that a sentence pronounced upon that plea therefore amounts to a conviction. In accord with this are Com. v. Holstine, 132 Pa. 357, 19 A. 273, and Com. ex rel. v. Jackson, 248 Pa. 530, 94 A. 233, the latter holding that such a sentence is a conviction within the meaning of a statute providing that conviction of a misdemeanor in office shall be followed by a forfeiture of the office. Com. v. Shrope, 264 Pa. 246, 107 A. 729, decides only that this plea is not allowable in a capital case, and contains nothing inconsistent with the statement that it is an admission only for the purposes of the indictment.

"The authority that is to be found on the subject, outside of Pennsylvania, is principally in statements made by text writers, and in dicta of courts quoting or repeating, and approving, such statements. Discussions of the subject all go back to, and find the origin of this plea in, a practice described in 2 Hawkins, Pleas of the Crown, Ch. 31, § 3. That practice was, as he states it, that a defendant, in a case not capital, without directly owning himself guilty would 'in a manner admit it by yielding to the King's mercy, and desiring to submit to a small fine,' and if the court thought fit to accept such submission, it would make an entry on the record 'that the defendant posuit se in gratiam regis, without putting him to a direct confession or plea;' and in such case 'the defendant shall not be estopped to plead not guilty to an action for the same fact, as he shall be where the entry is cognovit indictamentum.' This submission Hawkins characterizes as 'an implied confession.' 'In modern practice,' says Mr. Justice Stone in Hudson v. U.S. 272 U.S. 451, 455, 71 L.Ed. 347, 47 S.Ct. 127, this procedure 'has been transformed into the formal plea of nolo contendere. Like the implied confession, this plea does not create an estoppel, but like the plea of guilty, it is an admission of guilt for the purposes of the case.' For a more full and detailed history of the origin and development of the modern...