Travelers Fire Ins. Co. v. Wright

• Decision Date: 25 February 1958
• Docket Number: No. 37536,37536
• Citation: 322 P.2d 417,70 A.L.R.2d 1170
• Parties: , 1958 OK 50 The TRAVELERS FIRE INSURANCE COMPANY, a corporation, and The Western Fire Insurance Company, a corporation, Plaintiffs in Error, v. J. C. WRIGHT, J. B. Wright, J. C. Wright and J. B. Wright, d/b/a Wright Motor Company, and W. M. Wright, Administrator or the Estate of J. C. Wright, Deceased, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 417

322 P.2d 417

70 A.L.R.2d 1170, 1958 OK 50

The TRAVELERS FIRE INSURANCE COMPANY, a corporation, and The Western Fire Insurance Company, a corporation Plaintiffs in Error, v. J. C. WRIGHT, J. B. Wright, J. C. Wright and J. B. Wright d/b/a Wright Motor Company, and W. M. Wright Administrator or the Estate of J. C Wright, Deceased, Defendants in Error.

No. 37536.

Supreme Court of Oklahoma.

Feb. 25, 1958.

Syllabus by the Court.

1. Where a party seeks to prove testimony given at a former trial by offering a certified transcript of the reporter's notes, without more, such offer is subject to the provisions of 20 O.S.1951 § 115. If, however, the reporter is called to testify as to the correctness of said notes and to read them in evidence, the admissibility of such evidence is not governed by 20 O.S.1951 § 115, but by common-law rules of evidence pertaining to proof of testimony given at a former trial.

2. Testimony given at a former trial is admissible, under the common law, in a subsequent trial if the former testimony was given upon such an issue that the party-opponent in that case had the same interest and motive in his cross-examination that the present opponent has; provided it is necessary to admit such former testimony in order to utilize the knowledge of the witness, and provided the objecting party does not call to the court's attention any peculiar facts or circumstances which would cause the admission of such testimony to be an injustice.

3. Where a witness testifies in the trial of a cause and rightfully claims the constitutional privilege against self-incrimination in a subsequent trial, the testimony of such witness given at the former trial should be admitted, if the other prerequisites to the admission of such testimony exist.

4. A witness who is not subject to prosecution for a certain crime cannot successfully claim the privilege against self-incrimination when called upon to testify as to facts which he claims might tend to show that he is guilty of such crime. However, the fact that he has been granted immunity with the approval of the court does not necessarily mean that he can be compelled to so testify, if it appears that his claim of the privilege is based upon a genuine fear of future prosecution for said crime resulting from his alleged failure to testify truthfully or in good faith in a former criminal action wherein be obtained such grant of immunity.

Appeal from the District Court of Garvin County; Joe D. Shumate, Judge.

Action to recover on fire insurance policies covering plaintiffs' personal property. From a judgment in favor of plaintiffs, defendant fire insurance companies appeal. Reversed with directions.

Hanson & Green, by Clarence P. Green, Oklahoma City, Haskell Paul, Pauls Valley, for plaintiffs in error.

Ross & Ross, Dwight Tolle, O. C. Craig, Okema, Bill Wilson, Pauls Valley, for defendants in error.

JACKSON, Justice.

This is an action by J. B. Wright and J. C. Wright to recover $20,000 on two fire insurance policies. The defendant fire insurance companies defended on the ground that the fire that destroyed plaintiffs' property was deliberately caused by the plaintiff, J. B. Wright, with the intent of cheating and defrauding defendants. Defendants alleged and proved that plaintiffs, J. B. Wright and J. C. Wright, were partners at all times involved herein. The jury returned a verdict for plaintiffs in the amount of $20,000 upon which the court entered judgment resulting in this appeal.

Defendants called Wm. Holland Eppler and Albert Brown as witnesses. Each witness claimed his constitutional privilege against self-incrimination and refused to testify. The claim of each was granted by the trial court. Defendant then offered certified transcripts of testimony given by each witness in the trial of a criminal case wherein one of the plaintiffs herein, J. B. Wright, was charged with the crime of arson in connection with the fire involved in the instant case. Such testimony was to the effect that J. B. Wright, with the aid and assistance of the two named witnesses, actively procured the burning of the property. Each offer was rejected by the trial court. The court reporter who took the evidence in the criminal case testified as to the correctness of his transcript, the nature of the case in which the testimony was taken, and the parties involved. In addition to offering the transcript, defendants offered to have the reporter read same in evidence.

If the defendants had merely offered the certified transcripts, without more, such offer would have been subject to the provisions of 20 O.S.1951 § 115, governing the admission in evidence of certified transcripts. But the offer to prove the former testimony by the court reporter was not in any way subject to or restricted by the provisions of such statute for the reason that said statute is not a limitation upon the use of a court reporter's notes, but an extension thereof. In Oklahoma Ry. Co. v. Boles, 30 Okl. 764, 120 P. 1104, 1105, one party offered a certified transcript of former testimony in evidence. It was objected to on the grounds that it was not admissible as a deposition, because it was not filed one day before trial. (The statute governing admission of certified transcripts appears to limit the use of such transcripts to cases where a deposition might be used). In the cited case the court said:

'Even though plaintiff was correct in the contention that the transcript was incompetent because not filed one day before trial, yet it was certainly competent to prove by the stenographer's notes the testimony of the witness at a former trial (the stenographer being present and ready to testify as to the correctness of the notes) under the rule that a witness may testify concerning memoranda made by him, which he knows to have been correct at the time it was made, though he has no independent recollection of the facts stated in the memoranda.'

See also in this connection Atchison, T. & S. F. Ry. Co. v. Baker, 37 Okl. 48, 130 P. 577; and King Auto Service v. Hodges, 143 Okl. 260, 288 P. 483. It will thus be seen from our statement of the facts herein that the defendants attempted to make use of both the statutory and common-law rules governing the methods to be employed in presenting evidence given at a former trial. It is not necessary for us to decide whether the certified transcript, without more, was admissible, under the statute (Sec. 115, supra), and we do not so decide. We do decide that if the testimony given in the criminal case was admissible at all in the instant case the defendants met the preliminary procedural requirements of the common law for the admission of such testimony. We must now determine if the former testimony was admissible under the common-law rules of evidence.

In 20 Am.Jur. § 686, at page 580, it is said that the real basis for the admission of testimony given by a witness at a former trial is to prevent the miscarriage of justice where the circumstances of the case have made it unreasonable and unfair to exclude the same, and where the court perceives no need for the introduction of testimony taken at a former trial of the same issue, such evidence is properly excluded. See also Wigmore on Evidence, Vol. 5, page 148.

There is a difference of opinion upon the right to use in a civil case the testimony given in a criminal case by a witness whose testimony is no longer available. 20 Am.Jur. Evidence § 694, p. 586. Indeed this court has had difficulty with this question. In Ray v. Henderson, 44 Okl. 174, 144 P. 175, handed down in 1914, without dissent, it was held in the first paragraph of the syllabus as follows:

'The testimony of a witness, since deceased, given at an examining trial before a justice of the peace on the charge of felonious assault, may be used against the defendant, in a civil suit against him, for damages by the person assaulted.'

In Concordia Fire Insurance Co. v. Wise, Adm'r, 114 Okl. 254, 246 P. 595, 46 A.L.R. 456, handed down in 1926, with a divided court, 5 to 3, we overruled Ray v. Henderson, supra, and held in the fifth paragraph of the syllabus as follows:

'In an action to recover on a fire insurance policy, the testimony of a witness who has since died, given in the criminal proceedings against the insured for burning the building covered by insurance, is properly excluded.'

Since our decisions are binding upon trial courts and litigants, we appreciate the necessity of establishing a rule and following it. However, if we have established the wrong rule, or if our rule is unsound, we should avail ourselves of the first opportunity to correct it lest we perpetuate the wrong. In 142 A.L.R. 673, there appears an Annotation on the question involved herein. At page 701 of the Annotation the author states that he considers it unfortunate that we overruled Ray v. Henderson in the Concordia case.

It is interesting to note that in the Concordia case we followed the rule laid down by the Supreme Court of Illinois (McInturff v. Insurance Co. of North America, 248 Ill. 92, 93 N.E. 369), believing it to be the majority rule. However, in 46 A.L.R. (published subsequent to the Concordia decision) there appears an Annotation on page 463, under the subject 'Use in civil case of testimony given in criminal case by witness no longer accessible', wherein it is said:

'The weight of authority seems to be to the effect that, on a proper showing of inability to procure the attendance of a witness at the trial of a civil case, his testimony given in a criminal prosecution involving the same transaction is admissible against the person who was defendant therein.'

The author lists decisions from five states, Georgia, Iowa, New York, South Dakota, and Wisconsin, as constituting the weight of authority. Three states, Illinois, Pennsylvania, and Oklahoma (citing the Concordia case), are listed as following the minority view.

It is quite often stated that before...