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amount of the insurance, and the court ren- permitting the appellees to read as evidence dered a judgment accordingly, but upon an to the jury the transcript of the evidence appeal to this court the judgment was re- given by Goldie Ford upon a former trial. versed, and the consolidated cases remanded Fourth. Because of errors made by the for further proceedings.

court in its rulings upon the admission and Thereafter each of the appellants tendered rejection of evidence offered upon the trial. and offered to file an amended answer, in Fifth. Because the court erred in not perwhich it was alleged that since the pendency mitting the appellants to file their amended of the litigation an indictment had been re- answers, in which they relied for a defense turned against the appellee B. W. Wright in upon the judgment which adjudged B. W. which he was charged with the crime of Wright to be guilty of setting fire to and willfully and unlawfully setting fire to and burning the barn and tobacco. causing to be burned the tobacco house or Sixth. Because of the misconduct of the warehouse in which the tobacco of the ap-jury. pellees was stored, and that there was in

Seventh. Because the verdict was flagrantsurance upon the house, being the crime de-ly against the evidence, indicating that the nounced by section 1169, Kentucky Statutes, jury was actuated by passion or prejudice. and that he had been put upon trial upon the Eighth. Because of newly discovered eviindictment, and convicted and sentenced to dence. a term in the penitentiary, that he had ap

Ninth. Because the jury, after being orderpealed from the judgment of conviction to led to be kept together in the custody of the this court, and the judgment was affirmed, sheriff, were permitted to separate. and that the contents of the barn, on account of the destruction of which by fire the the court erred to their prejudice in overrul

[1] The contention of the appellants that appellees were maintaining the suits, were ing their motion to file the amended answers, consumed by and in the same fire which de- in the fifth ground for a new trial will be stroyed the barn, and for the setting of which first considered, because, if the judgment the appellee Wright had been tried and con- therein pleaded and relied upon as a bar to victed, and pleaded the judgment of the com

appellees' recovery constituted such bar, it

B. as a complete bar to recovery by appellees in completely disposes of the case, and no fur

ther questions need be considered. It will be these consolidated suits. The appellees objected to the filing of these amended answers, sented the defense that the appellees had

borne in mind that the original answers preand the court sustained their objections and sented the defense that the appellees had refused to allow them to be filed, to which willfully burned the barn and its contents, the appellants each saved an exception.

and there is no doubt that such is a good and Thereafter another trial was had before sufficient defense, if supported by the necesthe court and a jury, and at this trial a sary evidence, to the cause of action stated large number of witnesses were introduced by appellees in their petitions. It may also and evidence heard upon the issues made as be conceded that, if one of the parties willto the amount and value of the tobacco fully burned the barn and its contents, they which was burned and damaged, and as to could not as partners recover upon the poli

The conviction of the whether or not the barn was set fire to by cies of insurance. the appellees and the contents caused to be crime denounced by section 1169, Kentucky burned by them or either of them. The trial Statutes, based upon the charge in the inresulted in a verdict by the jury in favor of dictment that B. W. Wright and others asthe appellees, and upon this verdict the court sociated with him willfully and unlawfully rendered a judgment in favor of appellees conspired together to do so, and in furtheragainst the Citizens' Fire Insurance Comance of such conspiracy set fire to and burnpany for $1,000, the Old Colony Insurance ed the barn, was had in an action by the Company for $1,000, the People's National commonwealth of Kentucky against B. W. Fire Insurance Company for $1,000, and the Wright, and in which neither the appellants Liverpool & London & Globe Insurance Com- nor the other partner, Allen, were parties, pany for $2,000. The appellants filed grounds either of record or otherwise. The proceedand moved the court to grant them a new ing by the state was for the purpose of retrial, which was refused, and to which they dressing a wrong which Wright had commitexcepted, and they have now appealed to this Ited against it. If the trial of Wright upon court.

the indictment had resulted in an acquittal, A reversal of the judgment is sought upon could he and Allen then have offered the the following grounds:

judgment of acquittal as a bar to the defense First. Because of misconduct of appellees' of appellants that appellees had themselves attorneys in the argument of the case be-burned the barn and its contents? A mere fore the jury.

statement of the proposition is its answer. Second. Because of the misconduct of the The appellants could not be bound by the attorneys for the appellees in their efforts to judgment pronouncing Wright not guilty of wrongfully influence the jury in its decision the crime charged in the indictment, because upon the issues of the case.

they were not parties to the action and had Ky.)

LIVERPOOL & LONDON & GLOBE INS. CO. v. WRIGHT

51

whom a recovery in damages is sought for In this jurisdiction it has, however, been an alleged assault or battery plead a judg- held that, although the parties were the ment of acquittal upon an indictment based same and the actions based upon the same upon the same facts, in bar of the plaintiffs set of facts and circumstances, a judgment recovery? Or could one seeking the recovery of acquittal in an action penal in its charof damages for an assault and battery plead acter was not a bar to a civil action. Ellia judgment of conviction of the defendant son, etc., v. City of Louisville, 31 S. W. 723, upon an indictment based upon the same 17 Ky. Law Rep. 593. The court rested its facts, in bar of defendant's plea of son as- decision upon the fact that a different sault demesne, or a plea traversing the as- weight of testimony was required for a consault and battery? In the first instance, viction in the penal case from that required such judgment could not be pleaded, because for a recovery in the civil case. the plaintiff was not a party to the action in If Wright had been acquitted, instead of which the judgment was rendered, and, in convicted, of his guilt of the indictment the second instance, it should not be allowed, against him, he could not have used the Lecause the plaintiff was not in any wise judgment as a bar to appellants' defense prejudiced, nor any right of his determined that he burned the barn and its contents, by the judgment, nor would he have been because appellants were not parties to the prejudiced, if the judgment had been one of action in which he was convicted, and hence acquittal, and not a conviction. To hold could not be prejudiced thereby, and the that the judgment of conviction against B. judgment lacked mutuality as an estoppel, W. Wright was a bar to appellees' cause of and, further, the parties to the action at bar action in the case at bar would have been were not the same as in the case in which to estop the appellees to assert their cause Wright was convicted. of action. The rule is that estoppels must The rules above announced are founded be mutual. Bridges v. McAlister, 106 Ky. upon many reasons which are not necessary 791, 51 S. W. 603, 21 Ky. Law Rep. 428, 45 L. to be enumerated here, but suffice it to say R. A. 800, 90 Am. St. Rep. 267; Chiles v. that they have been so long established that Conley, 2 Dana, 21.

they cannot now be called in question. In 23 Cyc. 1238, the doctrine is thus stated: In the case of Cooper v. Commonwealth, "It is a rule that estoppels must be mutual ; 106 Ky. 909, 51 S. W. 789, 59 S. W. 524, 21 Ky. and therefore a party will not be concluded Law Rep. 546, 45 L. R. A. 216, 90 Am. St. against his contention by a former judgment unless he could have used it for a protection or Rep. 275, relied upon by counsel for appelas the foundation of a claim, had the judgment lants, the parties were the same and occupybeen the other way; and, conversely, no person ing the same antagonistic relation to each can claim the benefit of a judgment as an estop- other as in the case wherein the judgment pel upon his adversary unless he would have been prejudiced by a contrary decision of the was held to be a bar to a proceeding in the case.

case supra, and the cause of action was the In 23 Cyc. 1237, it is said:

same in each case. The same was true of “To constitute a judgment an estoppel there the case of Petit v. Commonwealth, 57 S. W. must be an identity of persons as well as the 14, 22 Ky. Law Rep. 262, and hence neither subject-matter; that is, it is necessary that the of those decisions can have any application parties as between whom the judgment is claimed to the case at bar. to be an estoppel must have been parties to the to the case at bar. action in which it was rendered, in the same ca

As to the case of Waddle v. Wilson, 164 pacities and in the same antagonistic relation, or Ky. 228, 175 S. W. 382, counsel overlook the else they must be in privity with the parties in fact that this was a suit against a policeman such former action."

for damages for alleged false imprisonment, In American & English Encyclopedia of and that in an action of this character, or Law, vol. 24, p. 778, the following rule is one for malicious prosecution, on account of stated:

the nature of the actions, a rule peculiar to “The rule is commonly laid down that, in or- such actions applies to the efficacy of the der to render a matter res judicata, there must be a concurrence of four conditions, viz.: (1) judgment which terminates the proceedings Identity in the thing sued for; (2) 'identity of which follow the alleged false imprisonment the cause of action ; (3) identity of persons and or malicious prosecution. In actions of this parties to the action; (4) identity of the qual- character it is necessary to show the terminaity in the persons for or against whom the claim is made."

tion of the proceedings complained of. If In the volume supra it is said:

an action for malicious prosecution, the com"A judgment in a criminal prosecution consti- plainant must show that the prosecution of tutes no bar or estoppel in a civil action based which he complained terminated favorably to upon the same facts or transactions, and con- him, or that his conviction was procured by versely of a judgment in a civil action sought to perjury or corrupt practices, and in an acbe given in evidence in a criminal prosecution. tion for false imprisonment the same rule

* * As between civil and penal actions, a judgment in one is, of course, no bar or estoppel applies. Duerr v. Ky. & Ind. Bridge & R. R. to the prosecution of the other, if the parties Co., 132 Ky. 228, 116 S. W. 325; Spring v. are not the same, identity of parties being a Besore, 12 B. Mon. 551; Hegan Mantel Co. fundamental requisite of res judicata, but, where there is a mutuality of parties, it has generally v. Alford, 114 S. W. 290. In the two kinds

*

show that the prosecution against him or the plicitly provides that such testimony can be arrest were made by an officer without a war- used only "where the testimony of such rant and were without probable cause. The * * * witnesses cannot be procured, which existence of probable cause is a sufficient de fact must be made to appear satisfactorily to fense in either action. If the prosecution the court by the affidavit of the party desircomplained of or the arrest complained of ing to use the same, or his attorney." There terminated in the acquittal of the party of is no showing or attempted showing made the crime or offense for which he was prose that the testimony of this witness could not cuted or on account of which he was arrest- have been obtained by deposition or other ed, he can use the judgment in his favor as way provided by law, and no excuse is made evidence that there was no probable cause for for the failure. No affidavit of any one was his prosecution or arrest, and if convicted of filed. The statements read to the jury as the the crime for which he was prosecuted or evidence of this witness were material, and arrested, the judgment is conclusive evidence the permitting it to be read was prejudicial of the existence of probable cause for his error. So. Ry. Co. in Ky. v. Owen, 164 Ky. prosecution or arrest, unless in his petition 571, 176 S. W. 25. he alleges and sustains by proof that his con- [5] During the trial below, and while apviction was obtained by fraud, corruption, or pellee B. W. Wright, who was offered as a perjured evidence. In the case of Waddle et witness for appellees, was testifying upon al. v. Wilson, supra, the defendant by amend-cross-examination, he was asked the followed petition pleaded the conviction of the ing questions, which were objected to by applaintiff of the offense for which he was ar- pellees, and the objections sustained, and he rested, and the lower court sustained a de- was not allowed to answer the questions: murrer to the answer, and this court held

(1) "Is it not a fact that you had a fight with that the amended answer presented a good G. R. Allen, the father of V. E. Allen, in the defense. The case at bar was an action up- presence of R. F. Wright?" on a contract between the appellees and ap- told said G. R. Allen that you and Vic [appellee

(2) "Is it not a fact that during that fight you pellants.

V. E. Allen] are as guilty of burning that barn [2] The court was not in error in overrul- as I am, and if I have to go to the penitentiary ing the motion to file the amended answers. you will have to go, too?" Neither can the judgment of conviction of Mr. Bob Wright ever came to see you in the in

(3) "I will ask you, while you were in jail, if appellee Wright of the crime of burning the terest of G. R. Allen and asked you not to barn be used in evidence, except that appel- tell on them ?” lants may prove the fact of his being con- Bob' Wright by saying that they are just as

(4) “If you didn't reply to that question of victed of a felony for the purpose of impeach- guilty of burning that barn as I am ?ing his testimony as a witness in the lawful (5) "Is it not a fact that, while you were in way and under the proper admonition of the jail after you had been convicted of burning the court. Without reciting any of the facts in barn in which this tobacco was stored and sen

tenced to the penitentiary for said crime, you evidence, it cannot be held that the verdict stated to Bob Wright that there were others of the jury was flagrantly or palpably against just as guilty as you were ?" the weight of the evidence, or that there is

It is avowed that, if the appellee B. W. not sufficient evidence to support the verdict. Wright had been permitted to answer, he

[3] The contention that appellants should would have answered “Yes” to each of the have a reversal of the judgment because of questions, and the court's refusal to allow newly discovered evidence is not tenable. him to answer is complained of as prejudiThe affidavits on file show that the appel-cial error. lants had actual knowledge of the evidence

The first question relates to a matter not which would be given by the proposed wit- relevant to the issues in the case, and any ness Gordon before the trial, and no reason answer which might have been made thereto is given for a failure to introduce him at the

was properly excluded. An answer to the trial, except his claim that he would not tes- third question was also properly excluded, tify because his statements would tend to because G. R. Allen was not a party to the incriminate him of the crime of assisting in suit, and the question does not indicate what burning the barn. His statements, as de- or who it was that G. R. Allen wanted protailed in his affidavit, would not be evidence tected, and the appellees could not be affectof his own guilt, and there was no reasoned by his statements. From an affirmative for the failure to offer him as a witness upon answer to the second, fourth, and fifth questhe trial.

tions it might be inferred that Wright him[4] The court erred in permitting appellees self was guilty of burning the barn, although to read the transcript of the evidence of the admission that he used the language Goldie Ford, given upon a former trial of the there inquired about would not be an unecase. The appellants objected to the reading quivocal admission of guilt. The issue was of it, upon the ground that no effort had been whether or not the appellees, or either of made to secure her presence as a witness or them, burned the barn, and, Wright having her testimony at the trial, and the affidavit testified that he did not do so, an affirmative required by section 4643, Kentucky Statutes, answer to those questions would, without exKy.)

LIVERPOOL & LONDON & GLOBE INS. CO. v. WRIGHT

53

statements made in his direct examination, , done except to set aside the verdict in their and the appellants were entitled to have his favor, and to impose the burden of another answers thereto for the purpose of affecting trial upon their clients. The statements of his credibility, or, if he denied that he used the counsel for appellees above set out were the language, to contradict him by proving calculated to improperly influence the jury, that he did make such declarations. Wright and were prejudicial. Owensboro Shovel & being a party to the suit, the appellants were Tool Co. v. Moore, 154 Ky. 431, 157 S. W, entitled to prove the declarations inquired 1121. about, if he made such, as evidence in chief,

[7] The second and sixth grounds upon not as evidence conducing to prove that any which a reversal is sought we will consider other persons were guilty of burning the together, as both relate to the misconduct barn, but that Wright had done so, himself. of the jury and some of the counsel of ap

[6] Another ground for a reversal insisted pellees with relation to the jury. These upon is the misconduct of the attorneys for grounds are supported by affidavits, and no appellees in making their arguments to the counter affidavits are filed which contradict jury. The bill of exceptions shows that, any of the statements made. The court placwhile one of the appellees' attorneys was aded the jury who heard this case in the cusdressing the jury, he said:

tody of an officer. It seems that there are “After this red-headed woman (Mrs. Lillie no provisions of the Civil Code which conRiley Pearson) testified, and after I went to my fer authority upon the court to place a jury hotel, I saw her prancing up and down in their office (pointing to the table where attorneys for in a civil case in the custody of an officer defendant sat) with her handkerchief to her and to require the jury to remain together eyes.”

until after the case has finally been subThe witness Lillie Riley Pearson had testi- mitted to it, but in Smith's Adm'x v. Middlesfied upon the trial that she was at the house boro Electric Co., 164 Ky. 46, 174 S. W. 773, of Lee Perkins shortly before the burning of it was said that, if the court has the inherent the tobacco, and that B. W. Wright came right to require the jurymen in a civil case there, and he and Perkins discussed the de- to remain together during the trial of the cline in the price of tobacco, and Wright re- case and before its final submission, it must quested Perkins to assist him in the burning be considered to be a matter within the of his barn so that he could collect the insur- sound discretion of the court and in further ance. There was nothing in the record to ance of justice, and it must be left in such support the statement of Via. It was testi- cases to the sound discretion of the trial mony given by him to the jury after the con court to determine whether any violation of clusion of the legal evidence in the case, its order in reference to the jurors remainwithout being under oath as a witness, and ing together is prejudicial to the substantial when there was no opportunity for a cross- rights of the parties. There does not seem examination. It could have no meaning, ex- to have been any substantial violation of the cept to impeach the testimony of the witness, court's order to remain together on the part by impressing upon the jurors that she was of the jury, but the officer having the jury, acting under some character of duress impos- in charge seems to have left the presence of ed upon her by the attorneys for appellants the jury, at least upon one occasion, when he or some one else. Although the statement went to the room of appellees' attorney J. was objected to, the court ignored the ob- D. Via to procure whisky for the jury, and jection, and failed to admonish either the at- on another occasion to get a drink for himtorney or the jury in regard to it.

self. The uncontradicted statements in the Another of appellees' attorneys, in address- affidavits show that frequently while the jury ing the jury, said:

were hearing the case, and during recesses sistant fire marshal) has bought and by intimidas when it would be at the hotel where it was tion procured these witnesses for the defendant kept and where Mr. Via, one of the attorneys (speaking of Lee Perkins, Lillie Riley Pearson, for the appellees, boarded, that Via was freand William Gambel)."

quently seen to call a juryman from the There was nothing in the record to support others to a distance of 10 or 15 feet, and this declaration. If the jury was impressed there engage in a conversation with the juror, by it and believed it, it could have no other which could not be heard by the affiants; result than to cause the jury to discard the that G. R. Allen, the father of appellee V. E. testimony of the witnesses referred to in Allen, and another who was an attorney for making its verdict, and to discredit the wit- appellee in the case, were from time to time nesses for the appellant generally. The state- during the trial seen mixing freely and conment by the attorney was objected to at the versing with the different jurors; that Mr. time, but the court ignored the objection. Via took an officer in charge of the jury When attorneys, in the argument of a case to his room and gave him a drink of whisky; before a jury, make statements declaring that on one occasion, in the lobby of the things to be facts which the record does not hotel, two of the jurymen requested Mr. Via support, either directly or inferentially, and to give them whisky, and requested the ofwhich are calculated to improperly influence ficer to allow them to go with Via to his

request of several jurymen, the officer in juror or jurors were furnished with intoxicating charge went to Via's room and bore to him liquors by or on account of such party. It need the request of the jurymen to send them not be shown that the offending person understood

the impropriety of his act, or that any juror whisky; that Via said that he did not have was actually influenced thereby.” the whisky then, but would have it later,

Here an attorney for the appellees, whom and showed him a drawer in which he would ,

we must presume had knowledge of the fact turned to Via's room and found in the drawer that the jury were put in charge of an of

ficer and directed to remain together for the a quart bottle which was filled a little over one-half with whisky, and which he took purpose of preventing improper influences to the jury, and the jurymen drank it upon the presence of the jury and go with him

reaching them, invites the officer to leave that night before retiring and on the next morning. The mere fact that jurymen have to his room, upon one occasion at least, and

. used intoxicating liquor during a trial, but then engages in plucking different members not to such an extent as to be under its in- of the jury away from their fellows and enfluence while hearing the testimony or con- be heard by persons 10 or 15 feet away, and

gages them in conversations which cannot sidering of the verdict, has never been held a in treating them with whisky, although at sufficient ground upon which to set aside the

their solicitation. verdict of the jury. Gordon v. L., St. L. & G. Ry. Co., 29 S. W. 321, 16 Ky. Law Rep. Am. Dec. 200, the court said:

In Cottle v. Cottle, 6 Greenl. (Me.) 140, 19 713; Smith's Adm'x v. Middlesboro Electric

"It is insisted that the juror was not, in fact, Co., 164 Ky. 46, 174 S. W. 773; Perry v. influenced, and that justice has been done beBailey, 12 Kan. 539. Whether any improper tween the parties. It may be so; but it may be influences were brought to bear upon the useful to the party to learn that a good cause jury, or whether by the actions and conduct may be injured, but cannot be promoted, by

conduct of this sort, and to the public generally, detailed in the affidavits anything improper to know that it will be tolerated in no case whator wrong occurred or was intended, cannot ever." be known either on the part of the jurymen

The affidavit of J. R. Johnson, one of the or Mr. Via, but the facts and circumstances, jurors, is not considered by us. Steel’s Heirs none of which are denied or explained, in

v. Logan, 3 A. K. Marsh. 397; Allard v. dicate a purpose and attempt to practice up-Smith, 2 Metc. 297; Lucas v. Cannon, 13 on the jury for the benefit of appellees' cause. Bush, 650 ; Doran v. Shaw, 3 T. B. Mon. In 29 Cyc. 803, it is said:

415. "It is generally ground for a new trial that

For the reasons indicated, the judgment members of a jury were entertained or treated during the trial by the successful party, or by is reversed, and the cause remanded for prohis attorneys or agents, and especially that a ceedings consistent with this opinion.

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