Wheat v. Continental Cas. Co.
| Decision Date | 06 June 1983 |
| Citation | 652 S.W.2d 345 |
| Parties | Joe WHEAT and Wife, Liz Wheat, Plaintiffs-Appellees, v. CONTINENTAL CASUALTY COMPANY, Defendant-Appellant. 652 S.W.2d 345 |
| Court | Tennessee Supreme Court |
James D. Petersen, Franklin, for plaintiffs-appellees.
Lewis B. Hollabaugh, Terry L. Hill, Nashville, for defendant-appellant.
In this case appellees combined in one action a suit upon a policy of fire insurance and tort claims for malicious prosecution, abuse of process and outrageous conduct. Appellant filed a timely motion to sever the insurance claim from the others. This motion was not granted, and all of the issues were tried together before the same jury and at the same time. 1
At the end of the proof offered by the plaintiffs, appellees here, the trial judge directed a verdict for appellant on all of the tort claims. No issue has been made as to the correctness of this ruling. It is apparent from reading the proof offered by the plaintiffs that the tort claims were scarcely more than a ploy or a ruse to get before the trial jury evidence that the insured, appellee Joe Wheat, had been acquitted in a previous criminal trial after he had been indicted for arson and for insurance fraud. This acquittal was referred to in the original complaint and was repeatedly referred to in the evidence and in final arguments of counsel.
After the trial court had directed a verdict for appellant on all of the tort claims at the end of the plaintiffs' proof, the case proceeded to the jury only upon the contract claim against the insurance company. Not only did the jury award a recovery on the policy in approximately the maximum amount claimed, but it also awarded the maximum statutory penalty allowable. 2 The Court of Appeals affirmed. This Court granted review, limited, however, to the issue of the penalty.
In the case of Tennessee Odin Insurance Co. v. Dickey, 190 Tenn. 96, 228 S.W.2d 73 (1950), this Court specifically held that the fact that an insured had been acquitted in an arson prosecution was inadmissible for any purpose in a later civil action upon the policy where the insurer defended upon the ground that the insured had procured the fire. Reversing a verdict for the insured because minute entries of his criminal acquittal had been introduced in evidence, this Court pointed out the obvious differences between the burden of proof of the State in a criminal case and that of an insurer in a civil case. The Court held that evidence of the acquittal was prejudicial to the insurer's defense and further said:
190 Tenn. at 100, 228 S.W.2d at 75.
It is obvious that the defendant, appellant here, was deprived of the benefit of this rule by the tactics employed by plaintiffs in this case and by the failure of the trial court to sever the insurance claim from the others. Indeed the trial judge recognized this. At the end of the plaintiffs' proof, when sustaining appellant's motion for a directed verdict, the trial judge said:
"... [I] think it is clearly one of the things I have seen in the lawsuit, that by bringing a malicious prosecution you have got to give the jury otherwise inadmissible evidence, is that a jury of twelve people acquitting Mr. Wheat, and I admire you, whoever in your office devised that tactic, but I just simply--under the cases it can't go to the jury on this proof, on what I see as malicious prosecution."
Nevertheless the trial judge held that because the present civil action...
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Brown v. State, No. E2004-01272-COA-R3-CV (TN 11/30/2004)
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