American National Insurance Company v. White

• Decision Date: 18 December 1916
• Docket Number: 51
• Citation: 191 S.W. 25,126 Ark. 483
• Parties: AMERICAN NATIONAL INSURANCE COMPANY v. WHITE
• Court: Arkansas Supreme Court

191 S.W. 25

126 Ark. 483

AMERICAN NATIONAL INSURANCE COMPANY v. WHITE

No. 51

Supreme Court of Arkansas

December 18, 1916

Appeal from Pulaski Circuit Court, Third Division; G. W. Hendricks Judge; affirmed.

Judgment affirmed.

Troy W Lewis, for appellant.

1. The court erred in refusing a continuance. 22 Ark. 164; 21 Id. 460; 99 Id. 399; 71 Id. 182; 60 Id. 564; 8 Iowa 536; 80 Ky. 480; 1 Yeates, 20; 48 S.C. 1. Due diligence was shown and the court clearly abused its discretion. 10 Ark. 527; 42 Id. 273; 85 Id. 334; 61 Id. 142.

2. The court erred in refusing to permit defendant to introduce the record of the coroner's inquest. 129 Ill. 557; Kirby's Digest, § 818; 65 Cal. 417; 129 Ill. 557; 168 Id. 408; 158 Id. 289; 1 Greenleaf on Ev., § 556; Starkie on Ev. 404; 25 Beav. 605; 19 Ohio Ct. Ct. 502; 101 F. 206; 41 C. C. A. 307.

3. The court erred in refusing a new trial for newly discovered evidence. Kirby's Dig., §§ 6215-6219; 61 Ark 287; 2 Id. 133. The evidence was not cumulative. 2 Ark. 346; 11 Id. 671; 26 Id. 496, etc. Defendant has alleged and shown facts from which it appeared that it could not have ascertained such evidence by due diligence. 148 S.W. 271; 25 Ark. 380, etc. The newly discovered evidence was material. 11 Ark. 671. It was not cumulative and the motion was supported by proper affidavit. 30 Ark. 723; Kirby's Digest, § 6219. See, also, 11 Ark. 671; 74 Id. 377. This court will reverse for refusal to grant a continuance. 80 Ark. 817; 93 Id. 346; Cyc. Dig. Ark. Rep. 1, p. 363, § 966; 22 Ark. 164.

4. The court erred in giving the peremptory instructions asked by defendant. The death was the result of violating the law and the policy was void. 73 Ark. 274; 18 Dig. Ins. Cas. 186; 68 F. 825; 99 Mass. 317; 18 Mo. 109; 19 Id. 506; 39 Id. 122; 90 Am. Dec. 455; 96 N.Y. 614; 67 Ind. 478; 57 S.W. 614; 99 N.W. 376; 5 Mo.App. 236; 88 Id. 633; 98 Id. 733; 73 S.W. 923; 96 N.Y. 614; 13 Allen (Mass.) 308.

5. The court erred in giving plaintiff's instructions and in reading Kirby's Digest, § 1798. Also in refusing to give defendant's instructions 2 and 3, and in assessing penalty and attorney's fees. 111 Ark. 554; 92 Id. 387.

W. H. Pemberton, for appellee.

1. The only question which the jury had to pass upon was: Did the assured die as a result of the violation of law? The premiums were paid and if the court's instructions are correct and the finding of the jury supported by the testimony the judgment should be affirmed.

2. The continuance was properly refused. No diligence was shown.

3. The record of the coroner's inquest was properly refused as evidence. 99 Mass. 325.

4. There was no error in refusing a new trial on account of newly discovered evidence.

5. The law of this case is settled in 73 Ark. 274; 45 N.Y. 422; 13 L. R. A. (N. S.) 258, 262.

6. The instructions are correct and the penalty and attorneys' fee properly allowed.

OPINION

HART, J.

In October, 1915, Marie White instituted this action against the American National Life Insurance Company to recover upon a policy of life insurance. The undisputed facts are as follows:

On February 6, 1914, the insurance company issued an insurance policy in the sum of $ 500 on the life of Leana Wells, and Marie White, her sister, was named as the beneficiary in the policy. Between seven and eight o'clock on the night of November 10, 1914, Tillie Clark shot and killed Leana Wells in the city of Little Rock, Arkansas.

One of the provisions of the policy was that no recovery be had thereunder should the insured "die as the result of a violation of the law, during the first year of the continuance of the policy, and that in such event the liability of the company should be limited to the amount of the premium actually paid thereon." The policy was in force at the time Leana Wells was killed by Tillie Clark and the company defended this action on the ground that the provision of the policy just quoted was violated. To sustain its defense, the insurance company introduced evidence substantially as follows: It was shown that Tillie Clark worked at a boarding house in the city of Little Rock and was a small active woman; that Leana Wells was a large woman and that both of them were negroes; that Leana Wells had complained to the proprietress of the boarding house that Tillie Clark was interfering between her and her husband, and that she was going to kill her.

The proprietress of the boarding house testified that she did not think from the way Leana Wells acted that she intended to kill Tillie Clark, but that it was all bluff, like negroes usually engaged in; that Leana Wells was killed a few minutes after she left the boarding house.

E. M. Harrington was the only eye-witness to the killing who testified in the case. His testimony is substantially as follows: I stepped out on the front porch of the boarding house in Little Rock, Arkansas, about 7:30 or 8 o'clock on the night of November 10, 1914. As I looked over towards an electric light diagonally across the street, I saw under a large tree possibly twenty-five feet from the corner, two women scuffling, possibly not in anger. A moment afterward they broke away rather hurriedly, and one of them started to run. Just after I noticed them break away, I saw the flash of a gun and at the same time heard a report. It afterward turned out that the smaller of the two women had the gun. The little woman was Tillie Clark and the larger one Leana Wells. The little woman ran across the street and the larger one pursued her and every ten or twelve feet, it seemed that the large woman was getting closer and the smaller woman would turn and fire at her with her pistol. I think the large woman had a stick or something of that kind in her hand. The little woman stopped and turned around and shot the first time or two over her shoulder, but when she shot the other times, she turned and deliberately waited for the larger woman to approach her. She seemed to turn around more deliberately and take a better aim. She fired the first shot when she was about five or six feet away. When she fired the next shot, she was probably 15 feet away from the larger woman. When the smaller woman would run, she would get farther ahead of the larger woman. but when she stopped to shoot, the larger woman would gain on her. Whenever the larger woman was nearer to the smaller one, she would strike at her, but I don't remember that she ever hit her. She was so far away.

The jury returned a verdict for the plaintiff, and the defendant has appealed.

It is first insisted by counsel for defendant that the court erred in not granting it a continuance on the ground of the absence of witnesses whose testimony was material to the defense. The application for continuance was addressed to the sound judicial discretion of the trial court, and the court's ruling will not be a ground for a reversal of the judgment unless there has been a manifest abuse of its discretion. The continuance was asked on account of the absence of Tillie Clark and a man named Bruck, who, it is claimed, witnessed the killing. It was stated that Tillie Clark would testify to a state of facts tending to show that she acted in self-defense in killing Leana Wells and the particular facts she would testify to were set out in the motion for a continuance. The motion also set out the facts which would be testified to by Bruck and the purport of his testimony was to corroborate that of Tillie Clark. The record shows that Tillie Clark killed Leana Wells on November 10, 1914; that the coroner's inquest was held the next day and that Tillie Clark and Bruck were witnesses. The plaintiff, through her attorney, demanded payment of the policy, and upon being refused, instituted this action on October 9, 1915. The case was duly set down for trial on the 3d day of February, 1916.

The defendant admits that it did not have a subpoena issued for these witnesses until the morning of the trial, but it shows that a law clerk in the office of its attorney had occasion to go about the city of Little Rock collecting, and that on his run he would make inquiries as to the whereabouts of these witnesses, and could not find them. It is also shown that defendant had its agents in the city of Little Rock soliciting insurance, and that these agents made inquiries for the witnesses and failed to find them. It was ascertained about eighteen days after the trial that Tillie Clark was living in the city of Little Rock and had been living there ever since the killing. On the morning of the trial, the defendant's attorneys learned that the witness, Bruck had gone first to the Isthmus of Panama and later to some place in South America and the attorneys' informant told him that he believed that by writing to the witness's former address in Panama that he would be able to find his present address in South America. Under this state of facts we do not think the court abused its discretion in refusing to grant a continuance. In regard to the witness, Tillie Clark, it may be said she had during the whole time been living in the city of Little Rock. It is true the defendant states that its agents made a search for her and were not able to find her. This is not sufficient. A subpoena should have been issued and placed in the hands of the sheriff for service. A party to an action can not usually claim that he has used due diligence in procuring the attendance of a witness by his own efforts merely to locate the witness. It is true it is his duty to notify the officer where the witness is if he knows the witness' residence and the officer does not. In the present case due diligence required that a subpoena be issued and placed in the hands of the officer at an earlier date than the morning of the trial. It is the duty of the...