Boston Marine Ins. Co. v. Scales

• Decision Date: 14 January 1899
• Parties: BOSTON MARINE INS. CO. et al. v. SCALES et al. (four cases).
• Court: Tennessee Supreme Court

49 S.W. 743

101 Tenn. 628

BOSTON MARINE INS. CO. et al. v. SCALES et al. (four cases).

Supreme Court of Tennessee.

January 14, 1899

Appeal from circuit court, Davidson county; John W. Childress Judge.

Four actions by Grace C. Scales and others against the Boston Marine Insurance Company and others, respectively, to recover on fire policies. From judgments for plaintiffs in each action, defendants appeal. Affirmed.

Pilcher & Bradford, for appellants.

Pillow & Tyne, for appellees.

WILKES J.

This consolidated record embraces four separate actions against different fire insurance companies, but, as they involve substantially the same questions, they have been tried together. Mrs. Grace C. Scales and Medora Waller, partners are the parties insured, and the subject is a stock of goods wheeled vehicles, etc. contained in a house on Cherry street, Nashville, Tenn. There was a trial before the court and a jury in the court below, and a verdict and judgment against the insurance companies, and they have appealed to this court and assigned errors. The title to the property insured was in Mrs. Scales and Mrs. Waller, as partners, and the business was carried on in their names, but by their husbands, and principally by Mr. Waller. The ladies took no active part in the business, and knew personally but little of its operations. The policies were taken out by the husbands, two of them in the names of the ladies, and the other two in the firm name of Scales & Waller, and no question is made but, that this meant the firm composed of the two ladies. No question is made in the record as to the title to the property being in the married women as partners, or that the insurable interest was in them, but stress is laid upon the fact that the business was wholly managed by the husbands, as explaining other matters appearing in the record. The fire occurred on the 27th of June, 1897. On the 15th of July thereafter, there was an agreement to arbitrate, which was only partially executed, and no award was made. Afterwards proofs of loss were filed with the company. These were prepared by the husbands, and it appears principally by Scales, and were sworn to by both husbands and wives. These proofs purport to contain itemized schedules of the property damaged and destroyed, and are sworn to as correct by the married women, and separately by the husbands, to the best of their knowledge, information, and belief in each affidavit. After examining these proofs, the companies, on the 14th of September, 1897, notified the assured and their husbands that they denied all liability on the policies, and declined to pay the same or any part thereof. The suits were brought on the 8th of January, 1898.

Many errors are assigned.

It is insisted that the court erred in overruling the objection of the companies to the evidence of D. C. Scales and W. H. Allen, as to the character, value, and quantity of goods damaged and destroyed. The specific objection made in this court to this evidence is that it is based largely, if not entirely, upon an itemized statement made out by other parties, principally R. W. Waller, and hence it was hearsay, and secondary evidence, and showed on its face that it was not the best evidence obtainable. We are precluded from passing upon this assignment upon its merits, as we fail to find from the record that any proper exception was made and acted upon in the court below. We are not cited in the assignment to any page of the transcript where such exception may be found, and it is asserted by opposing counsel that no such exception appears, and we have been able to find none. It is said that the attention of the court was called to the fact that the evidence offered was not the best that could be obtained, and he was requested to charge, upon this feature of the case, that the evidence must therefore be rejected. But the question cannot be raised in the charge only, and, no objection having been made to the evidence when offered, it must stand as not excepted to.

In the reply to appellees' brief, it is said a proper exception to the evidence of D. C. Scales is found on page 76 of the transcript. Upon examining this, we find that defendants' counsel did attempt to object to Scales' statement, and was proceeding to state his objection when witness interrupted with an explanation. The objection was not renewed, and was never completed, and never acted on by the court, and hence cannot be considered in this court.

It is said the court erred in refusing to allow counsel for the insurance companies to ask Mr. Waller to explain the difference in items contained in the proofs of loss made to the adjusters and other statements afterwards made. No exception appears to have been taken to this refusal and ruling of the court at the time, and it does not appear what the witness would have stated, or that the explanation was within his knowledge or material to the issues involved, and we are precluded from considering it. In the reply brief, it is said that a proper exception will be found on page 185, but we find that the exception on page 185 was not to any statements made by Mr. Waller, but to statements made by Wrightman, and about a distinctly separate matter, which the court thought was not pertinent.

It is objected that the court refused to let counsel for the companies ask R. W. Waller whether he obtained some blank billheads from Carpenter Bros. It does not appear what the witness would have stated in response to the question, so that this objection is not in shape for our consideration.

None of these assignments comply with the rule. None of the exceptions were properly made. An exception to evidence must be made when it is offered, and the ground of exception must be specifically pointed out. It must appear that the court adversely acted upon the exception, and, if it is to the rejection of testimony, it must appear from the record what the witness would have stated if allowed to answer, in order that this court may see that it is material. The assignment of errors must always point out the page of the transcript where such exceptions may be found. We may add, however, that we think these exceptions could not be sustained if properly made.

The fourth, fifth, and sixth assignments may be considered together. It is said the court erred in charging the jury that, if there were any fraudulent and wrongful items embraced in the proofs of loss, it must be shown that they were included with the knowledge and by the consent of the ladies insured, and that the fraudulent acts and intent of R W. Waller, as their agent, could not defeat their right of recovery unless they knew of the fraud or ratified it after it came to their knowledge; and that the court should have charged the jury that if Mrs. Scales and Mrs. Waller adopted any false statement made by their agents, without investigating the facts, they thereby became guilty of fraud themselves, and the jury should find against them; and that if they made representations as to the facts when they had no knowledge, and the representations proved to be untrue, that would be fraud, within the provisions of the policy, and would defeat any recovery. These assignments present the merits of the controversy. As bearing upon them, it is insisted that the terms of the policy are important. It is provided in the policy that, in case of any fraud or false swearing by the assured touching any matter relating to this insurance or the subject thereof, either before or after the loss, the policy shall be voided. And, again, the policies provide that whenever in this policy the term "insured" is found it will be held to include the legal, representatives of the assured. We are of opinion that the contention of appellants derives no strength from the use of the term, "legal representatives of the assured." Used in this connection, and in regard to the subject-matter, this term means parties beneficially interested, by law or contract, in the policy, such as an assignee, or the executors, administrators, and heirs of the assured, and not persons who are merely agents of the insured. Metzger v. Assurance Co., 102 Mich. 334, 63 N.W. 650. The brief filed with the assignment of errors states that the insurance companies repeatedly introduced proof showing fraud and false swearing on the part of Waller, the agent of the insured, which the court excluded on the ground that his false swearing was not material, and that the court instructed the jury not to consider the same in making up their verdict, unless it was shown that assured knew of the false swearing. The appellants have given no references to the record where such evidence was offered and objected to and excluded, so that we can only treat such matters as the appellees have pointed out, and such as we have been able to find in the record, which we have done without conforming to the rule. As touching on this general...