Godbolt v. Brawley

Present: All the Justices

BENJIE GODBOLT

v. Record No. 950105 OPINION BY JUSTICE BARBARA MILANO KEENAN
November 3, 1995
ROBERT W. BRAWLEY, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge

The primary issue in this appeal is whether the trial court,

in a civil action for assault, erred in admitting evidence that

the plaintiff and one of his witnesses had been convicted of

simple assault arising out of the same incident.
On September 12, 1993, the plaintiff, Benjie Godbolt, and

some members of his family went to Scarlett Shockoe Kitchen and

Bar (Scarlett), a restaurant and nightclub located in the City of

Richmond. Robert W. Brawley, an off-duty deputy sheriff, was

working as a security guard outside the entrance to Scarlett.

During the evening, Godbolt and his family were involved in

an altercation with a member of the band performing at Scarlett.

As the Godbolt family was being ejected from the club, Brawley

attempted to detain them on the steps until the police arrived.

A fight ensued.

Godbolt's brother, Terry, started the fight by punching

Brawley. As Brawley fought back using his blackjack, Benjie

Godbolt became involved in the fight and also began punching

Brawley. Brawley fell to his knees and shot both Godbolt

brothers with a gun that he had kept tucked in the waistband of

his pants.

Both Benjie and Terry Godbolt were convicted of simple
assault arising out of this incident. No charges were instituted

against Brawley.

Benjie Godbolt filed a motion for judgment against Brawley

and Scarlett, seeking recovery for damages resulting from the

shooting. At trial, the court allowed the jury to hear evidence

that both Benjie and Terry Godbolt had been convicted of simple

assault based on this incident. After Godbolt rested his case,

the trial court struck his evidence and granted the defendants'

motions for summary judgment, ruling that Godbolt could not

recover damages resulting from his own wrongdoing.
Godbolt contends that, although evidence of the actual

conduct is admissible, the trial court erred in admitting

evidence of the assault convictions. He argues that the trial

court improperly admitted this evidence as proof that he had

committed a wrong against Brawley. Godbolt asserts that this

ruling was erroneous because, under the holding of Selected Risks

Ins. Co. v. Dean, 233 Va. 260, 355 S.E.2d 579 (1987), mutuality

must exist in order for evidence of the conviction to be

admissible. He argues that there is no mutuality between this

case and his criminal prosecution because the parties,

procedures, and purposes of the two proceedings differ.

In response, the defendants argue that, while a litigant

generally is prohibited from presenting evidence of a prior

criminal conviction in a civil case arising out of the same

incident, this rule is subject to the exception that a civil

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plaintiff cannot profit from his or her own criminal act. The

defendants assert that, under such circumstances, a defendant may

introduce evidence of the plaintiff's prior conviction.

The defendants rely on Eagle, Star and British Dominions

Ins. Co. v. Heller, 149 Va. 82, 140 S.E. 314 (1927), in which

this Court held that a convicted arsonist could not recover under

an insurance policy for damages to a building that he had burned.

Id. at 105-06, 140 S.E. at 321. Based on this authority, the

defendants argue that evidence of the Godbolts' convictions was

properly admitted into evidence, in order to prevent Benjie

Godbolt from recovering damages from the victim of the crime.
In examining this issue, we first consider Smith v. New

Dixie Lines, Inc., 201 Va. 466, 111 S.E.2d 434 (1959), in which

this Court stated that the general rule in Virginia is that
a judgment of conviction or acquittal in a criminal
prosecution does not establish in a subsequent civil
action the truth of the facts on which it was rendered,
or constitute a bar to a subsequent civil action based
on the offense of which the party stands convicted or
acquitted, and such judgment of conviction or acquittal
is not admissible in evidence.

Id. at 472, 111 S.E.2d at 438.

This Court explained that "[t]he reason for the rule is that

the parties in a criminal proceeding are not the same as those in

a civil proceeding and there is a consequent lack of mutuality."

Id., 111 S.E.2d at 438; see also Selected Risks Ins. Co., 235

Va. at 261, 355 S.E.2d at 579. Two additional reasons supporting

the rule are: (1) the objects of the two proceedings are

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different; and (2) the results and procedures of the two trials

are different. Aetna v. Czoka, 200 Va. 385, 389, 105 S.E.2d 869,

872 (1958).

In Aetna, we explained that, under the principle of

mutuality, "[n]o party is, as a general rule, bound in a

subsequent proceeding by a judgment, unless the adverse party now

seeking to secure the benefit of the former adjudication would

have been prejudiced by it if it had been determined the other

way." Id. at 389, 105 S.E.2d at 873 (citation omitted).

However, an exception to the requirement of mutuality arises when

a plaintiff attempts to recover for a harm that is the direct

result of his or her own criminal conduct, and the dispositive

issue in the civil action is the precise issue that the criminal

conviction addressed.

In Eagle, Star, this Court held that evidence of an

arsonist's criminal conviction was admissible in his subsequent

civil action to recover damages under the insurance policy he had

obtained on the premises. This Court noted that the plaintiff

"committed the felony, and [then sought] to recover the fruit of

his own crime." 149 Va. at 105, 140 S.E.2d at 321. In addition,

the policy the plaintiff had obtained excluded recovery if the

policyholder willfully burned his own property. Id.

This Court observed that the central issue in the civil

action was the same as the issue adjudicated in the criminal

proceeding, namely, that the plaintiff feloniously burned his

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goods with the intent to defraud his insurance company. The

Court stated that this issue was "quite different from those

generally raised by a plaintiff suing the alleged wrongdoer in

tort." Id. at 105-06, 140 S.E. at 321. The Court held that to

apply the rule of mutuality in that situation would enable the

plaintiff to commit "the same fraud which has been established,

condemned and punished in the criminal case." Id. at 106, 140

S.E. at 321.
Similarly, in Miller v. Bennett, 190 Va. 162, 56 S.E.2d 217

(1949), this Court held that the estate of a woman, who died

after participating in an illegal abortion, could not recover

damages for wrongful death from the person who performed the

abortion procedure. This holding was based on the fact that the

direct cause of the decedent's death was the illegal conduct in

which she consensually participated.

Employing the same reasoning in Zysk v. Zysk, 239 Va. 32,

404 S.E.2d 721 (1990), this Court held that a woman who had

contracted a sexually transmitted disease during premarital sex

could not recover damages from her partner. The act of sexual

intercourse was both consensual and illegal. We explained that

"courts will not assist the participant in an illegal act who

seeks to profit from the act's commission." Id. at 34, 404

S.E.2d at 722.

The plaintiffs in Eagle, Star, Miller, and Zysk were all

willing participants in the intentional criminal acts that caused

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their injuries. The plaintiff in Eagle, Star burned his own

property. The decedent in Miller consented to, and thereby

intentionally participated in, the abortion procedure which

caused her death. Likewise, the plaintiff in Zysk participated

in the illegal act of premarital sex that caused the transmission

of the disease.

In contrast, the facts underlying Benjie Godbolt's assault

on Brawley differ from the factual situations outlined above.

Unlike the plaintiffs in Eagle, Star, Miller, and Zysk, Godbolt's
intentional criminal act was not the direct cause of his injury.

Although Godbolt may have intentionally engaged in assaultive

behavior, he did not engage in the use of deadly force and did

not consent to its use. The direct cause of the injury for which

Godbolt seeks damages is Brawley's use of deadly force. Thus,

the exception to the general rule does not apply under these

facts, and we conclude that evidence of Godbolt's assault

conviction is inadmissible, and that the trial court erred in

ruling that the conviction barred Godbolt's action against the

defendants.

We also conclude that evidence of Terry Godbolt's assault

conviction is inadmissible. A misdemeanor conviction of a

witness is generally admissible only for impeachment purposes,

and, then, only if the misdemeanor is one involving moral

turpitude. Parr v Commonwealth, 198 Va. 721, 723, 96 S.E.2d 160,

163 (1957).

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 Finally, we disagree with Scarlett's assertion that the

trial court's award of summary judgment to Scarlett is harmless

error. Scarlett contends that, as a matter of law, it is not

vicariously liable for Godbolt's injuries, because Brawley was

acting in his public function as a deputy sheriff when he

attempted to restrain Godbolt.

Under certain circumstances, an employer may incur liability

under the doctrine of respondeat superior for the acts of

employees who are off-duty public officers. In Glenmar

Cinestate, Inc. v. Farrell, 223 Va. 728, 292 S.E.2d 366 (1982),

we held that
[t]he test is: in what capacity was the officer acting
at the time he committed the acts for which the
complaint is made? If he is engaged in the performance
of a public duty such as the enforcement of the general
laws, his employer incurs no vicarious liability for
his acts, even though the employer directed him to
perform the duty. On the other hand, if he was engaged
in the protection of the employer's property, ejecting
trespassers or enforcing rules and regulations
promulgated by the employer, it becomes a jury question
as to whether he was acting as a public officer or as
an agent, servant, or employee.

Id. at 735, 292 S.E.2d at 369-70 (citation omitted).

The record before us contains evidence that Brawley was

acting in conjunction with other Scarlett personnel who were

ejecting the Godbolts from the club. There is also evidence that

the Godbolts had engaged in destructive behavior, such as

breaking beer bottles, while they were on Scarlett's premises.

We hold that this evidence raises a jury question whether Brawley

was acting as an employee, attempting to impose order on

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Scarlett's premises, when the incident occurred.

For these reasons, we will reverse the judgment of the trial

court and remand this case for a new trial consistent with the

principles expressed in this opinion.

Reversed and remanded.

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