New York Life Ins. Co. v. Turner

Decision Date11 October 1923
Docket Number2 Div. 808.
Citation210 Ala. 197,97 So. 687
PartiesNEW YORK LIFE INS. CO. v. TURNER.
CourtAlabama Supreme Court

Appeal from Circuit Court, Choctaw County; Ben D. Turner, Judge.

Action by Bulah G. Turner against the New York Life Insurance Company. From a judgment for plaintiff defendant appeals. Reversed and remanded.

Frazer & John and Harry T. Smith & Caffey, all of Mobile, for appellant.

John S Tilley, of Montgomery, and Gray & Dansby, of Butler, for appellee.

GARDNER J.

Appellee brought this suit against the appellant on a policy of life insurance, dated November 5, 1919, insuring the life of her husband, W. H. Turner. The insured died within two years following the issuance of the policy, and the defendant interposed the plea that within this two-year period, on to wit, January 28, 1921, the insured came to his death by self-destruction-the policy containing the usual suicide clause.

The evidence for the defendant tended to show that the insured died from the effects of carbolic acid internally administered with suicidal intent. The plaintiff in rebuttal offered testimony rested upon the theory that the insured died of heart failure, and that no carbolic acid was taken internally, but, if used, it was only for the purpose of relieving the toothache.

The defendant insists that any theory contrary to that of suicide rested upon mere conjecture, and that therefore the court should have given the affirmative charge in its favor as requested.

To discuss the evidence would serve no useful purpose as the cause must be reversed upon another ground, but the court has given due consideration to the testimony in consultation, and the conclusion has been reached that under the evidence offered by the respective parties an issue of fact was presented for the jury's determination, and the affirmative charge was properly refused.

After verdict for the plaintiff, the defendant moved for a new trial based upon the sole ground of the improper conduct of the plaintiff in discussing with and making remarks to some members of the jury during the trial of the cause. An attorney who assisted counsel for the defendant in the defense of the cause made affidavit to the effect that on the night of April 4, 1922, after adjournment of court for supper, two of the jurors were introduced to the plaintiff and to the affiant in the lobby of the hotel, and that plaintiff then stated to these jurors as follows:

"My fate is in your hands, if the jury decides against me, I will be satisfied, but if they decide in my favor, I will be the happiest woman in the courthouse or in the town."

Affidavits offered by the plaintiff were in denial of this conversation, and the proof [presented to the trial court by affidavits only] leaves this question as one of disputed fact for determination here. The affidavits bearing thereon have been read and considered by us in consultation, and the conclusion has been reached that these remarks were made to the jurors named or to some of the jurors engaged in the trial of the cause, or if not made directly to them were made in their presence, and intended to be heard or were heard by them. We enter into no discussion of these affidavits, but rest content with the statement of our conclusion of this issue of fact. It requires no argument to demonstrate that this was such misconduct as demands a new trial.

In Craig v. Pierson Lbr. Co., 169 Ala. 548, 53 So. 803 speaking to this question, the court said:

"Aside from protecting the rights of parties, in the fair and impartial administration of justice, respect for the courts calls for their condemnation of any improper conduct, however slight, on the part of a juror, of a party, or of any other person, calculated
...

To continue reading

Request your trial
17 cases
  • Steffen v. S.W. Bell Tel. Co.
    • United States
    • Missouri Supreme Court
    • December 14, 1932
    ...Sinclair v. United States, 279 U.S. 758; Marshall v. Gordon, 243 U.S. 521; Mattox v. United States, 146 U.S. 147; New York Life Ins. Co. v. Turner, 210 Ala. 197, 97 S.W. 687; Craig v. Pierson Lbr. Co., 169 Ala. 548, 53 So. 803; Downes v. Bristol, 4 Conn. 274; Livingston v. Wynne, 147 Ga. 30......
  • Commonwealth Life Ins. Co. v. Harmon
    • United States
    • Alabama Supreme Court
    • March 22, 1934
    ... ... Miller v. Metropolitan Life Ins. Co., 214 Ala. 4, ... 106 So. 335; Empire Life Insurance Co. v. Gee, 171 ... Ala. 435, 55 So. 166; New York Life Ins. Co. v ... McJunkin, 227 Ala. 228, 149 So. 663 ... It is ... further declared that statements contained in a proof of ... Ala. 110, 115 So. 12; Cotton States Life Ins. Co. v ... Crozier, 216 Ala. 537, 113 So. 615; New York Life ... Ins. Co. v. Turner, 210 Ala. 197, 97 So. 687 ... The ... primary question of fact presented is: Was the assured in ... good health when he made application ... ...
  • Steffen v. Southwestern Bell Telephone Co.
    • United States
    • Missouri Supreme Court
    • December 14, 1932
    ... ... Buder, 318 Mo. 1155, 6 S.W.2d 947; Miller v ... Firemen's Ins. Co., 206 Mo.App. 475, 229 S.W. 261 ... (7) Instruction 10 is ... 521; Mattox v ... United States, 146 U.S. 147; New York Life Ins. Co ... v. Turner, 210 Ala. 197, 97 S.W. 687; Craig v ... ...
  • Bland v. State of Alabama
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • March 21, 1966
    ...7 See Rules of Practice of Circuit and Inferior Courts 22, Vol. 3, Code of Alabama, Recompiled 1958, p. 1194; New York Life Ins. Co. v. Turner, 1923, 210 Ala. 197, 97 So. 687, 688; McLemore v. International Union et al., 1956, 264 Ala. 538, 88 So.2d 170, 172. 8 Code of Alabama 1940, Title 7......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT