First National Bank in Grand Junction v. Osborne , 28 Utah 2d 387 ( 1972 )

TUCKETT, Justice

(dissenting) :

While I do not dis.sqnt from the action-of the majority, in remanding this case for, a new trial, I ■ am not in agreement with, _ some of the directions. spelled out in the , decision of the majority, kfy first-concern is with the proffer of .proof made by the , defendant Hudso.p. to show that defendant. Osborne had entered pleas pf guilty tp, ¡ four cpunts of .embezzlement from his pm-ployer, ,; Moab National Bank. Default,; judgment having been .entered against th,e, defendant.Osborne.,by the plaintiff herein,; there is no issue before us. pertaining to that defendant. We have no statute deal- . ing with the particular situation before the., court, but the majority rule is to the effect that previous criminal convictions are inadmissible'in ' civil actions.¹- Those jurisdi'c- • tions which do not follow the majority rule" have permitted admissibility' in those, cases' where the convicted criminal seeks to recover the fruits of his crime or to take advantage of certain rights arising out of the crime for which he was convicted.² I find no case which would permit one defendant to introduce evidence of a conviction of a co-defendant in an attempt to defeat. the. claim of a plaintiff., .

I am of the opinion that the trial court was correct in its ruling that a statement made by an independent witness that the defendant Osborne had made the statement “I finally was able to hang one on him . . referred to in the majority opinion was inadmissible. While that statement may have been admissible on an issue raised between the defendant Osborne and the defendant Hudson, it is clearly hearsay as to the defendant Hudson and the plaintiff in these proceedings. If the statement amounts to an admission against interest, the admission is binding only on Osborne and cannot have any probative value as to Hudson’s defense. It should be noted that the statement was not made in the presence of the plaintiff or any of its officers or employees.

The majority opinion states that this is not a case of fraud, but it should be remembered that Hudson does not claim that the signature on the guaranty contract is not his but that his signature was fraudulently obtained by trick, ruse, or other artifice. Hudson has the burden of proving that allegation. I do not believe this court should say that one who sues upon a written contract must show not only that the contract was signed by the opposing party but that he must go further and show that the opposing party entered into the contract freely, voluntarily or without mental reservation.

HENRIOD, J., concurs in the dissenting opinion of TUCKETT, J.

1 . Moorman v. National Casualty Co. (Ohio App.) 75 N.E.2d 806; 18 A.L.R. 2d 1287.

2 , 18 A.L.R.2d 1300.,.-,,,