Opinion
No. 74-159
Decided May 6, 1975. Rehearing denied June 10, 1975. Certiorari granted September 22, 1975.
From judgment for plaintiff entered on a jury verdict in assault and battery action, defendant appealed.
Reversed
1. ASSAULT AND BATTERY — Defendant's Transfer of Property — After Assault — Evidence Inadmissible — Jury Instruction — Prejudicial Error. In assault and battery action, evidence that defendant had transferred without consideration all of his real property to his wife and his sister after the alleged assault but before the filing of the lawsuit was evidence that is inadmissible on either the issue of liability or self-defense, and jury instruction given by the court highlighting that irrelevant and immaterial evidence was prejudicial error.
Appeal from the District Court of the City and County of Denver, Honorable James C. Flanigan, Judge.
Walter L. Gerash, P.C., Gary P. Sandblom, for plaintiff-appellee.
Robert L. McDougal, G. A. Score, for defendant-appellant.
Defendant Jackson appeals from a judgment entered on a jury verdict in favor of plaintiff Bush in an assault and battery action. We reverse.
After a series of controversies between the parties, who were brothers-in-law and business partners, Jackson shot Bush. In the ensuing lawsuit, Jackson defended on a claim of self-defense. The jury held for Bush and awarded him $75,000 compensatory damages for his hospital and medical expenses, loss of earnings, and pain and suffering, and, in addition, awarded $10,000 exemplary damages.
At the trial, on cross-examination of Jackson, Bush's lawyer was permitted over objection to elicit the information that Jackson had transferred without consideration all of his real property to his wife and his sister after the shooting but before the filing of the lawsuit. On redirect examination, Jackson's attorney asked additional questions in an attempt to explain the transactions.
The evidence might have been admissible for the purpose of showing Jackson's financial condition, to aid the jury in determining an amount that would punish him in the event that (should it decide on liability adversely to Jackson) it determined to award exemplary damages to Bush. See McAllister v. McAllister, 72 Colo. 28, 209 P. 788; Courvoisier v. Raymond, 23 Colo. 113, 47 P. 284. However, it was not offered or admitted for that purpose but on the issue of liability and against the claim of self-defense. In addition to admitting this evidence, the court, over objection, gave the following instruction to the jury:
"You are instructed that the transfer of property by a person after the commission of an act which may render him liable in damages to another may be considered to show a consciousness of liability.
"However, the person effecting the transfer of property is entitled to explain the reason for the disposition of his property." With the instruction, the issue is clearly raised as to whether this evidence is admissible on the issue of liability.
This is a matter of first impression in Colorado. In the relatively few cases in which this question has arisen in other jurisdictions, some have held this evidence admissible as tending to show a "consciousness of liability" (as in the instruction quoted above) and a purpose to evade satisfaction of it, or, to put it another way, as indicating that the defendant felt he had done a wrong, in redress of which he expected that his property might be seized. Burdett v. Hipp, 252 Ala. 37, 39 So.2d 389; Klein v. Pasch, 153 Minn. 291, 190 N.W. 338.
On the other hand, Missouri has held that the defendant cannot be asked if he conveyed property, although he can be asked if he had conveyed his property to avoid the payment of damages he may have considered he had incurred. Amsinger v. Najim, 335 Mo. 528, 73 S.W.2d 214; Gore v. Brockman, 138 Mo. App. 231, 119 S.W. 1082. In Amsinger, the court stated that it could not believe the law was such that if a person had an automobile accident he could not sell or trade his property for a valuable consideration without the fear of the transaction being used as an admission against him. Still other jurisdictions have held that no evidence in regard to any conveyance is admissible on the issue of liability. Givens v. Berkley, 108 Ky. 236, 56 S.W. 158; Miller v. Dill, 149 Ind. 326, 49 N.E. 272 ( but see Harrod v. Bisson, 48 Ind. App. 549, 93 N.E. 1093). See Hocks v. Sprangers, 113 Wis. 123, 87 N.W. 1101.
We are concerned here with conduct and not with statements. The latter would be reviewable under the law pertaining to admissions against interest. In Carsell v. Edwards, 165 Colo. 335, 439 P.2d 33, a judgment for plaintiff in an automobile accident negligence action was reversed for the reason that the trial court, over objection, admitted testimony concerning the defendant's concern expressed to plaintiff over points and losing his license, and refused to instruct the jury to disregard such testimony. The court held that his evidence was not only irrelevant, but also prejudicial. We adopt that rationale here.
Transferring property after an event can be the result of an understandable fear of an adverse outcome to impending litigation without in any way lessening the defendant's belief in the rightness of his own conduct. Also, we view the contention of a defendant's so-called "consciousness of liability," surmised from such acts, as a far-fetched and uncertain legal conclusion.
[1] Therefore, we hold, as a matter of law, that such evidence is inadmissible on either the issue of liability or self-defense, and the instruction, highlighting the irrelevant and immaterial evidence, was prejudicial error. There was insufficient evidence in the record for a verdict to be directed on the issue of liability, and the court properly denied plaintiff's motion therefor. The trial court's rendering of this instruction, picking out this evidence alone and commenting on its particular significance, virtually accomplished indirectly what it could not do directly. Also, it could easily have influenced the jury to grant exemplary, and to increase the amount of compensatory damages.
The above being dispositive of this appeal, it is unnecessary to discuss the defendant's other assignments of error. The judgment is reversed and the cause is remanded for a new trial.
JUDGE RULAND and JUDGE STERNBERG concur.