Appeal from the District Court of the United States for the Eastern District of Illinois; Walter C. Lindley, Judge.
Before MAJOR, KERNER, and MINTON, Circuit Judges.
Plaintiff, the named beneficiary in a policy of war risk insurance on the life of Earl Warren Austin, sued defendant, alleging that the insured died on March 20, 1939, while the policy was in force. The defendant and intervening petitioners interposed an affirmative defense and moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.The District Court sustained the motion, entered judgment in favor of the administrator of the estate of the insured and that plaintiff take nothing by her suit. From that judgment this appeal is porsecuted.
The administrator of the estate of the insured by his intervening petition, and the Government although acknowledging liability for the proceeds of the policy met the complaint with an amended answer, asserting that the plaintiff was not entitled to the proceeds of the policy because she had murdered and had been convicted of the murder of the insured. The plaintiff contended she was unjustly convicted and insisted she was entitled to retry that issue in this case without regard to the conviction in the criminal case. The District Court held that the fact that the plaintiff had murdered the insured was established by the record of the criminal proceedings showing her conviction of such murder, and that by her admission of the conviction she was estopped from receiving and had forfeited all her rights to any part of the insurance.
The facts established by the pleadings are that in a criminal action instituted by an indictment in the Circuit Court of Hardin County, Illinois and on change of venue, tried in the Circuit Court of White County, Illinois, plaintiff was tried and found guilty of murdering the insured, her husband, and was sentenced to the Illinois State Penitentiary for Women, where she is now confined. On appeal the conviction and judgment was affirmed. People v. Austin, 374 Ill. 28, 27 N.E.2d 830.
At the outset we are met with the contention that the allegations in the defendant's answer and intervenor's petition, that plaintiff feloniously caused the death, and did feloniously kill and murder the insured, are mere conclusions, furnishing no ground for a summary judgment against the plaintiff. In support of this contention, she argues that in murder cases there are many means by which the killing may have been accomplished, namely, by shooting, stabbing and poisoning, and the defense in any one of those cases would be different from the defense in any one of the others.There can be no question that such is the rule in an indictment for homicide, but that rule is not applicable here and we do not deem it reasonable to condemn the answer and intervening petition because they failed to allege in specific language the means by which the murder was accomplished. Here the question was her conviction of murder. It was sufficient that the allegations be stated generally. See Kelley v. Baggott, 273 Ill.App. 580, and Filmore v. Metropolitan Life Ins. Co., 82 Ohio St. 208, 92 N.E. 26, 28 L.T.A., N.S., 675, 137 Am.St.Rep. 778.
The point is also made that plaintiff's conviction of murder is no evidence of the fact of murder. The argument is that a judgment in a criminal proceeding can not be read in evidence in a civil action to establish any fact there determined. In support of the argument, the cases in the footnote are cited.*fn1 These we have considered, but we are of the opinion that those cases have reference to a fact upon which the judgment in the criminal proceedings rested, and the legal consequences contended for were recognized as flowing, if at all, solely from such fact, and not from the judgment itself.
The rigid rule of exclusion of judgments in criminal cases as evidence in civil cases involving the same facts has been relaxed in recent years by some courts in particular cases. Thus where a party to a civil case has previously been convicted in a criminal case of a crime relating to the same factual situation which is in issue in the civil case, it has sometimes been held that the record of has conviction is admissible against him, on the ground of estoppel. New York Life Ins. Co. v. Murdaugh, 4 Cir., 94 F.2d 104. See, also, Schindler v. Royal Ins. Co., 258 N.Y. 310, 179 N.E. 711, 80 A.L.R. 1142; and Fidelity-Phenix Fire Ins. Co. v. Murphy, 226 Ala. 226, 146 So. 387.
In Eagle, Star, etc., v. Heller, 149 Va. 82, 140 S.E. 314, 57 A.L.R. 490, the court discussed the rule that the record of a conviction or of an acquittal, is not conclusive of the facts on which it is based in any civil action, citing 2 Freeman on Judgments, § 653. The court then stated that it was perfectly logical to hold that if the offender had been acquitted in the criminal prosecution, that acquittal should not bind another party who, for a personal injury arising out of the same occurrence, seeks redress in a civil action, because the prosecution may have failed merely because the guilt of the accused was not proved beyond any reasonable doubt. This reason, however, fails where there is a conviction, and the fact of guilt has been judicially determined. The court said (140 S.E. page 316): "We confess our inability to perceive * * * way the accused person himself should not be * * * bound * * * by the result of the prosecution, if adverse to him. He has had his day in court, with the opportunity to produce his witnesses, to examine and cross-examine the witnesses for the prosecution, and to appeal from the judgment."
In Diamond v. New York Life Ins. Co., 7 Cir., 50 F.2d 884, 886, the appellants contended that a judgment of conviction of murder in a criminal proceeding was not admissible in a civil action to establish the fact that the accused committed the murder for which he was convicted. The proof was that the insured had been indicted, tried and convicted for murder. In discussing the question Judge Evans of this court said: "The decision in Burt v. Union Central Life Ins. Co., 187 U.S. 362, 23 S. Ct. 139, 141, 47 L. Ed. 216, settles the question. * * * the question of the admissibility of this judgment and the verdict upon which it was based was squarely presented and decided."
The Burt case, supra, was an action to recover on a life insurance policy. There, as here, it was contended that the person convicted of murder, had not in fact committed the murder and that he was unjustly convicted; there, as here, it was contended that the record of the conviction was not conclusive; the court, however, held that the criminal prosecution was an adjudication of the insured's guilt.
In Illinois a judgment may be offered in evidence in any case for the purpose of establishing the fact of its rendition and those legal consequences which result from the fact. Illinois Steel Co. v. Industrial Commission, 290 Ill. 594, 125 N.E. 252. In our case the defendant's answer and the intervenor's petition set up the judgment which resulted in plaintiff's conviction of the murder of the insured. That judgment imported verity and could not be collaterally contradicted. Burt v. Union Central Life Ins. Co. and Diamond v. New York Life Ins. Co., supra. We think no error was committed in holding the judgment was conclusive upon the plaintiff.
Finally, plaintiff contends that the murder of the insured by the beneficiary designated in a converted government life insurance policy, furnishes no reason for denying her recovery in view of the incontestable clause in the policy and in the statute. She insists that such a clause does not violate public policy and that such a defense is waived. Lee v. Southern Life, etc., 19 Ala.App. 535, 98 So. 696; Henderson v. First National Bank, 229 Ala. 658, ...