Travelers Fire Insur. Co. v. Wright 322 P.2d 417, 70 A.L.R.2d 1170 (1958)
Wright and his brother co-owned some property that burned
down. They tried to collect the insurance money, but the insurance
company decided that the fire had been deliberately set. Wright sued.
The police agreed with the insurance company and
criminally prosecuted Wright for arson.
At the civil trial, Travelers called Eppler and Brown as
witnesses, but they refused to testify, citing the 5th
Travelers' argued that the Wrights, Eppler, and Brown all
conspired to burn the property for the insurance money.
Because they actually invoked a privilege against
testifying, they are considered to be unavailable for purposes of hearsay.
Travelers' then produced transcripts of Eppler and Brown's
testimony in the criminal trial against Wright for arson.
Travelers' brought in the court reporter from the
criminal case who testified to the accuracy of the transcripts.
The Trial Judge refused to allow the testimony into
The Trial Court found for Wright. Travelers' appealed.
The Oklahoma Supreme Court reversed and remanded for a new
trial on the grounds that the evidence had been improperly excluded.
The Oklahoma Supreme Court said that the basis for
admitting 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.
The Court found that the weight of authority seems to be
that, on a proper showing of inability to procure the attendance of a
witness at the trial of a civil case, their testimony given in a criminal
prosecution involving the same transaction is admissible against the
The Court also found that the evidence was admissible
against both brothers, even though one brother had not been prosecuted
One partner cannot gain from the wrongdoing of the
other, whether or not a conspiracy existed.
In general, courts have held that in order to use
testimony from a prior case, there must be:
An inability to obtain the testimony of the witness.
There must have been the ability to cross-examine the
witness in the previous trial.
There must have been an identity of issues.
There must have been an identity of parties.
Wright's brother argued that he was not a party to the
criminal case, so there was not an identity of parties between the two
cases, but the Court decided that wasn't required.
Also, only the defendant parties are important,
obviously Travelers' wasn't a party to the criminal case.
Basically, in order to use testimony from a previous
trial, you have to make sure that the witness was being used to establish
the same point. In the criminal case, Eppler and Brown were called to
establish that Wright procured the burning of the building. In the civil
case, they were called to establish the same thing. Therefore their
former testimony is admissible.
This case was decided under the common law. Today, it
would be governed by FRE 804(b)(1), which covers the rules for unavailable