Crumpton v. Confederation Life Insurance Co.
672 F.2d 1248 (5th Cir. 1982)
 

BROWN, Circuit Judge.

Vicki Crumpton, the beneficiary of an accidental death policy, sued Confederation Life Insurance Co. (Confederation) for the benefits under the policy. From a jury verdict and judgment in favor of the beneficiary, Confederation appeals. The asserted error [is the] improper admission of prejudicial evidence of the character of the insured....

The facts in this suit on an insurance policy are unusual for that genre of cases. The insured, Titus Crumpton (Crumpton), was shot by Joanne Petton, a neighbor who lived just a little more than a block away. While Confederation's defense to the policy was that Crumpton's death was not accidental, the focus of the trial was on the alleged rape of Ms. Petton by the deceased insured. Thus we find it necessary briefly to summarize the circumstances claimed to have led to Crumpton's death.

On the afternoon of November 8, 1978, Ms. Petton, a housewife with three children, was allegedly raped and beaten in her home by Crumpton. The assailant apparently threatened to kill Petton's children if she informed the police or anyone about the rape. Ms. Petton did report the incident to the police five days later, on the morning of November 13, 1978, stating that the attack had occurred on the morning of November 8 and that she could not identify her assailant. Between the time of the alleged rape and her report to the police, Ms. Petton did inform her parents and her husband, but she never revealed to her husband that the assailant had made threats against her. On November 13, Ms. Petton was also examined by her physician who found multiple bruises on Petton's body "more consistent with a sex assault than just would be a general beating of some sort.''

At approximately 9 p.m. on November 13, 1978 Ms. Petton asked her husband to pick up some medication at the drug store. After he left, Ms. Petton then delivered to her next door neighbor a sealed envelope containing a handwritten note stating "Mr. Crumpton attacked and raped me in afternoon not morning.'' Subsequently, Ms. Petton, with a pistol in her possession, went out to the garage at which time she observed Crumpton standing out on the street. Apparently, he proceeded toward her so she pulled out the gun and, without any verbal warning, shot Crumpton at close range.

Titus Crumpton was insured by Confederation as part of a group policy obtained by his employer to cover accidental death and dismemberment. The policy, in the amount of $150,000, designated Vicki Crumpton as the beneficiary. The policy provided benefits for accidental death, defined as "death resulting from ... accidental bodily injury visible on the surface of the body or disclosed by an autopsy.''

Vicki Crumpton brought this suit seeking recovery of the proceeds of this policy, claiming that her father, Titus Crumpton, died of gunshot wounds inflicted by another person. Confederation, while admitting that Crumpton was insured under the policy, denied coverage, asserting that Crumpton's death did not result from an accidental bodily injury within the meaning of the policy. Specifically, Confederation, while not disputing the death, contended that Crumpton had raped his neighbor who fatally shot him in the belief that he had returned to inflict further harm on her or her children. For this reason, Confederation asserted that Crumpton should have anticipated that his actions would result in bodily injury, and thus death was not accidental under the meaning of the policy.

The beneficiary denied that the rape occurred or alternatively asserted that Crumpton could not reasonably have anticipated his death five days after the rape. The case was tried to a jury to whom one special interrogatory was submitted: "Did plaintiff Vicki Crumpton prove by a preponderance of the evidence that the bodily injuries of T.B. Crumpton which resulted in his death were accidental''? The jury responded that "Plaintiff did prove.'' The District Court entered judgment awarding the beneficiary the benefits under the policy as well as statutory penalties and attorney's fees. Confederation appeals.

Confederation's primary assertion of error concerns the admission by the District Court of evidence regarding Crumpton's character. Prior to trial, Confederation by motion in limine sought an order prohibiting the admission into evidence of "any fact regarding or relating to T.B. Crumpton's character or reputation in the community.'' This motion was denied by the District Court judge who found that under the peculiar fact circumstances Crumpton's character was at issue. Also, the District Court determined that the evidence would be admissible in a criminal case under F.R. Evid. 404(a), which rule, although appearing to apply only to criminal cases, should properly apply to the type of case at hand.

At the trial Vicki Crumpton called as witnesses several persons who testified to Crumpton's "character.'' The witnesses included the pastor of a church, who testified that Crumpton did not have a violent temper, did not use profanity, and did not make passes at women; the church secretary who testified similarly; a "good friend'' who testified that Crumpton did not use profanities or make obscene gestures or indecent proposals to women, was not violent, and did not drink; Crumpton's sister-in-law who testified similarly; and the beneficiary who testified that her father was not violent and did not use threats.

Confederation contends that the admission of this testimony not only violated F.R. Evid. 404 but was also prejudicial, constituting "virtually the only direct evidence adduced to satisfy the Beneficiary's burden....'' The propriety of the admission of evidence of character depends in part on the purpose for which that evidence is offered. Generally this type of evidence is offered for one of two purposes: (1) when a person's possession of a particular character trait is an operative fact in determining the legal rights and liabilities of the party and thus is one of the ultimate issues in the case, or (2) to prove circumstantially that a person acted in conformity with his character on a particular occasion.

The use of character evidence for the first purpose above is generally referred to as "character at issue.'' When used for such a purpose, it is not within the scope of F.R. Evid. 404 which applies instead to the second use, that of showing that the person acted in conformity with his character. F.R. Evid. 404(a) governs the admission of character evidence when used for the circumstantial purpose and generally excludes such evidence unless within one of the three exceptions. These exceptions are admission of character evidence to prove action in conformity with character of the accused, of a victim in certain circumstances, and of a witness. With these exceptions, character evidence is generally excluded because it is viewed as having slight probative value and yet may be very prejudicial. Where character is part of the ultimate issue of a case, F.R. Evid. 404(a) is not relevant.

The District Court also found that even if F.R. Evid. 404(a) were applicable, the evidence of character would be admissible under the exceptions. While Rule 404(a) generally applies to criminal cases, the unusual circumstances here place the case very close to one of a criminal nature. The focus of the civil suit on the insurance policy was the issue of rape, and the resulting trial was in most respects similar to a criminal case for rape. Had there been a criminal case against Crumpton, evidence of his character that was pertinent would have been admissible. We do not view the notes of the Advisory Committee as contravening this interpretation....

The argument is made that circumstantial use of character ought to be allowed in civil cases to the same extent as in criminal cases, i.e., evidence of good (nonprejudicial) character would be admissible in the first instance, subject to rebuttal by evidence of bad character.... The difficulty with expanding the use of character evidence in civil cases is set forth by the California Law Revision Commission.... Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man to punish the bad man because of their respective characters despite what evidence in the case shows actually happened.

While the Committee's notes reject the expanded use of character evidence in civil cases, we do not view this as determinative of the circumstances of this case, which while actually civil, in character is akin to a criminal case. By implication, when evidence would be admissible under Rule 404(a) in a criminal case, we think that it should also be admissible in a civil suit where the focus is on essentially criminal aspects, and the evidence is relevant, probative, and not unduly prejudicial.

Affirmed.

 


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