Connecticut Mutual Life Insurance Company v. Sallie Hillmon

• Decision Date: 02 February 1903
• Docket Number: No. 94,94
• Citation: 23 S.Ct. 294,47 L.Ed. 446,188 U.S. 208
• Parties: CONNECTICUT MUTUAL LIFE INSURANCE COMPANY, Petitioner , v. SALLIE E. HILLMON
• Court: U.S. Supreme Court

188 U.S. 208

23 S.Ct. 294

47 L.Ed. 446

CONNECTICUT MUTUAL LIFE INSURANCE COMPANY, Petitioner,

v SALLIE E. HILLMON.

No. 94.

Argued November 13, 14, 1902.

Decided February 2, 1903.

This was an action begun July 13, 1880, by Sallie E. Hillmon, in the circuit court of the United States for the district of Kansas, to recover the amount of a policy of insurance ($5,000), issued by the company March 4, 1879, upon the life of John W. Hillmon, her husband, in which the plaintiff was named as beneficiary. Plaintiff made the usual allegations of compliance with the terms of the policy, and averred that the assured had died March 17, 1879, thirteen days after the policy was issued, and that due proofs had been forwarded to the company. Other actions were also brought against the New York Life Insurance Company and the Mutual Life Insurance Company of New York, upon policies of insurance issued by them upon the same life, which actions were subsequently compromised.

Defendant interposed a general denial, and for a special defense set up, in substance, that on or before November 30, 1878, John W. Hillmon, John H. Brown, Levi Baldwin, and divers other persons to defendant unknown, fraudulently conspiring to cheat and defraud defendant, procured a large amount of insurance on the life of Hillmon, to wit: $10,000 in the New York Life, by policy dated November 30, 1878; $10,000 in the Mutual Life, by policy dated December 10, 1878; and $5,000 in the Connecticut Mutual Life, by the policy in suit, dated March 4, 1879; that thereafter, in pursuance of such conspiracy, Hillmon, Brown, and Baldwin falsely represented to defendant and others that said Hillmon had died, and that a certain dead body which they had procured was that of Hillmon, whereas in truth Hillmon 'was not and is not dead,' but has kept himself concealed under assumed names for the purpose of consummating the conspiracy.

As a third defense the company set up a release by plaintiff of all her claims against it under the policies.

Actions having been begun upon all three of these policies, an order was entered July 14, 1882, consolidating them for trial. Two trials of the three consolidated cases resulted in disagreements of the jury. On February 29, 1888, judgments in each were rendered for the plaintiff, which, upon writs of error, were reversed by this court and the cases remanded for a new trial. 145 U. S. 285, 36 L. ed. 707, 12 Sup. Ct. Rep. 909. The material facts of the case are fully set forth in that report, and will not be here repeated, except so far as they are pertinent to the questions before this court for consideration. After two more trials of the consolidated cases, which resulted in disagreements of the jury, a compromise was effected between the plaintiff and the New York Life, which was followed by dismissal of the action against that company. Thereafter, and on January 9, 1895, an order previously entered consolidating the two remaining actions for trial was continued in force against the objection of each defendant, and the consolidated cases again came on for trial, resulting in separate judgments November 18, 1899, against both companies. To reverse this, defendant sued out a writ of error from the circuit court of appeals, and upon hearing in that court the judgment was affirmed with one dissent. 46 C. C. A. 668, 107 Fed. 834. The Mutual Life sued out a similar writ of error, but compromised the case before it was heard in the circuit court of appeals.

Messrs. W. G. Beale, Buell McKeever, Gilbert E. Porter, James W. Green, and Edward S. Isham for petitioner.

Messrs. L. B. Wheat, C. F. Hutchings, and John H. Atwood for respondent.

Mr. Justice Brown delivered the opinion of the court:

We shall have occasion to notice but few of the 108 assignments of errors in this case.

1. Several of these relate to an order of consolidation, and to the ruling of the court giving to the plaintiff six peremptory challenges to the jury, while each defendant had but three.

On June 14, 1882, the three original cases were first consolidated for trial, and so remained through all the trials which took place prior to the settlement with the New York Life. The propriety of this consolidation was affirmed by this court upon its first appearance here in 145 U. S. 285, 36 L. ed. 707, 12 Sup. Ct. Rep. 909. A stipulation appears to have been entered into October 16, 1899, between the attorneys for the plaintiff and the attorneys for the three defendants, to set aside the order of consolidation, and a motion was made for an order to that effect, which was overruled, and the order of consolidation was continued in force as to the two remaining defendants. It would seem that the court refused to be controlled by the stipulation. We see no reason to doubt the propriety of this order, nor does it appear to have been seriously contested. But its effect upon the number of peremptory challenges to which the defendant was entitled is made the subject of dispute. Upon the former hearing of this case it was held that the consolidation of the three cases there con- sidered did not impair the right of each of the three defendants to three peremptory challenges under Rev. Stat. § 819 (U. S. Comp. Stat. 1901, p. 629). But the question was left undecided whether the right of the plaintiff was multiplied, so that she became entitled on the last trial to six peremptory challenges, or only to three.

The circuit court was of opinion that, as, under our ruling, the two defendants were, under Rev. Stat. § 819 (U. S. Comp. Stat. 1901, p. 629), each entitled to three peremptory challenges, or six in the aggregate, the plaintiff was also entitled to six. This is the converse of the proposition established by this court when the case was first here. The argument of the defendant in this connection is that under the ruling of the court each defendant was treated as one party and the plaintiff as two parties; that it gave the plaintiff more challenges than she would have had in one case, treating the causes of action as distinct, and the plaintiff entitled to her three challenges in each case, with the result that each defendant, without its consent, and against its protest, was compelled to try its own cause before a jury to which it was given only one half as many peremptory challenges as were given to the plaintiff. The consequence was that each defendant was prejudiced by the fact that every additional peremptory challenge allowed to the plaintiff beyond three makes arbitrarily a vacancy which may be filled in spite of the defendant by a juror, whom it might and would have challenged if it had an opportunity to do so. The substance of the argument is that, it having been held upon the former hearing here, that each defendant lost no right by the consolidation, and was entitled to as many challenges as if no such consolidation had taken place, the plaintiff was not entitled to any more challenges than she would have been entitled to in case the consolidation had not taken place. Quite a number of cases are cited in support of this proposition: Savage v. State, 18 Fla. 909; Wiggins v. State, 1 Lea, 738; Mahan v. State, 10 Ohio, 234; State v. Earle, 24 La. Ann. 38, 13 Am. Rep. 109; Schoeffler v. State, 3 Wis. 823; Thompson, Trials, § 45; Proffatt, Trial by Jury, § 164. The case of Spies v. People, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898, is to the contrary.

Conceding that the great weight of authority supports the proposition of the defendant, we are still of opinion that it is not entitled to take advantage of it, inasmuch as it made but two peremptory challenges, waiving its right to a third, and thereby acquiesced in the composition of the jury. The only effect of allowing the plaintiff six peremptory challenges was to put three additional men upon the jury, which the defendant could not challenge, and if it had exhausted its peremptory challenges it might perhaps claim to have been prejudiced by the fact that three men had been put upon the jury which it was not entitled to challenge; but, having failed to exhaust its peremptory challenges, it stands in no position to complain that it was deprived of the right to challenge others. Stout v. Hyatt, 13 Kan. 232, 241; Atchison, T. & S. F. R. Co. v. Franklin, 23 Kan. 74; Florence, E. D. & W. Valley R. Co. v. Ward, 29 Kan. 354; Atlas Min. Co. v. Johnston, 23 Mich. 36; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308.

2. Error is charged in the refusal to instruct the jury that 'the statement signed and sworn to by John H. Brown on the 4th day of September, 1879, having been introduced in evidence by the plaintiff, may be considered in connection with the deposition of John H. Brown as evidence of the facts stated under oath, against the plaintiff, with like effect as the deposition of John H. Brown, and may also be considered as affecting the credibility of said Brown as a witness.'

In lieu thereof the court charged the jury that Brown's statement, signed and sworn to by him, was not affirmative evidence of the truth of any matter therein contained or mentioned, and that it should not be considered by the jury except as affecting the credibility of the evidence of Brown in his deposition. To determine the correctness of this construction, it is necessary to consider the circumstances under which the evidence was produced. The alleged death of Hillmon was said to have occurred in March, 1879. Upon the trial plaintiff offered and read in evidence the deposition of John H. Brown, taken on December 30, 1881, who swore generally that he was employed by Hillmon driving a team, and afterwards in taking care of and feeding hogs; that he started with him from Lawrence for Wichita for the purpose of locating a cattle ranch, and that Hillmon was accidentally killed by the discharge of a gun in the hands of Brown. To contradict this testimony William J. Buchan, a witness put upon the stand by the defendants, swore that in the spring or...