## Facts

- Partners operating Wright Motor Company held two fire insurance policies issued by Travelers Fire Insurance Company and Western Fire Insurance Company covering business personal property.
- A fire destroyed the insured property, and the insureds sued to recover $20,000 under the policies.
- The insurers asserted an arson-and-fraud defense, alleging J.B. Wright deliberately caused the fire to defraud the insurers.
- In a prior criminal arson prosecution arising from the same fire, two witnesses, Wm. Holland Eppler and Albert Brown, testified that J.B. Wright procured the burning with their assistance.
- In the civil case, the insurers called Eppler and Brown, but each invoked the privilege against self-incrimination and refused to testify; the trial court sustained their claims.
- The insurers offered certified transcripts of Eppler’s and Brown’s prior criminal-trial testimony and presented the court reporter to authenticate the transcripts and identify the case and parties.
- The trial court excluded the transcripts, and the jury returned a $20,000 verdict for the insureds; judgment was entered accordingly.

## Issues

1. Whether a witness’s valid invocation of the privilege against self-incrimination makes the witness sufficiently unavailable to permit admission of former testimony.
2. Whether testimony from a prior criminal trial is admissible in a later civil action when the party against whom it is offered had an opportunity and similar motive to cross-examine in the criminal case.
3. What degree of similarity of issues and parties (or interests) is required to admit former testimony under the hearsay exception.

## Decision

- The Oklahoma Supreme Court reversed the judgment for the insureds and remanded with directions to grant a new trial.
- The court held the trial court erred by excluding the certified transcripts of Eppler’s and Brown’s testimony from the earlier criminal arson trial.
- The court directed that, on retrial, the former testimony be admitted upon a proper showing of the foundational requirements for former testimony.

## Legal Principles

- Former testimony may be admitted when the proponent shows: (1) inability to obtain the witness’s live testimony (including unavailability due to a sustained self-incrimination claim), (2) a prior opportunity to cross-examine, (3) substantial similarity of issues, and (4) sufficient similarity of parties or identity of interests and motive in cross-examination.
- Testimony from a criminal proceeding can qualify as former testimony in a subsequent civil case if the factual issues substantially overlap and the party against whom the testimony is offered previously had the same or greater incentive to cross-examine.
- Where exclusion of reliable former testimony would materially impair adjudication of an arson-and-fraud defense, evidentiary rules governing former testimony should be applied to avoid unjust results.

## Conclusion

The court ordered a new trial because the insurers were entitled to present the prior criminal-trial testimony of witnesses who became unavailable after invoking the privilege against self-incrimination, given the substantial overlap of issues and the insured’s prior opportunity and motive to cross-examine.


Travelers Fire Ins. Co. v. Wright, 322 P.2d 417 (Okla. 1958)