Chandler v. Mutual Life & Industrial Ass'n of Georgia

• Decision Date: 20 July 1908
• Citation: 61 S.E. 1036,131 Ga. 82
• Parties: CHANDLER v. MUTUAL LIFE & INDUSTRIAL ASS'N OF GEORGIA.
• Court: Georgia Supreme Court

61 S.E. 1036

131 Ga. 82

CHANDLER v. MUTUAL LIFE & INDUSTRIAL ASS'N OF GEORGIA.

Supreme Court of Georgia

July 20, 1908

Syllabus by the Court.

Declarations of a person since deceased against his interest, and not made with a view to pending litigation, are admissible in evidence in any case.

[Ed Note.-For cases in point, see Cent. Dig. vol. 20, Evidence §§ 1135-1142.]

The admission of immaterial evidence, without harmful effect, is not cause for a new trial.

[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4153-4160.]

One has no insurable interest in the life of his brother-in-law merely because of the existence of such relationship.

[Ed Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, § 158.]

"When a portion of a charge, which is complained of generally, contains several distinct propositions and one or more of the same is correct in the abstract, then the general assignment of error is not good, and will not be further considered, because it in effect improperly alleges that all of such portion is erroneous, and does not show to which of the propositions, the correct or the erroneous, it is intended to take exception."

As it manifestly appears that the movant and his counsel, by the exercise of ordinary diligence, could have obtained knowledge, before trial, of the alleged newly discovered evidence, it was not cause for a new trial.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, New Trial, §§ 210-214.]

Error from Superior Court, Clarke County; C. H. Brand, Judge.

Three suits by C. C. Chandler against the Mutual Life & Industrial Association of Georgia. On the trial, the suits were consolidated, and, judgment having been rendered for defendant, plaintiff brings error. Affirmed.

J. A. B. Mahaffey, H. S. West, and Shackelford & Shackelford, for plaintiff in error.

J. J. Strickland and E. K. Lumpkin, for defendant in error.

FISH C.J.

1. A letter written by Yerby to C. B. Chandler on June 10, 1904, was admitted in evidence over the objection of the plaintiff. In the letter was this language: "I repeat that I have not in the last 20 years made myself, or authorized any one to make, applications whatever for insurance of any kind. I have not even discussed the matter, except with Ralph Chandler, whose proposition I positively declined." The court also permitted C. B. Chandler to testify, over plaintiff's objections, that both before the receipt of the letter and afterwards Yerby stated to him that he had no insurance on his life; that he had made no applications for any, nor authorized any one to make applications for him, except Ralph Chandler; that he (Yerby) was not on good terms with C. C. Chandler, and that, if he had applied for insurance on his (Yerby's) life, it was without his knowledge or consent. The objections urged against the introduction of this letter and this testimony of C. B. Chandler were that they were irrelevant and immaterial; that they were not between the parties to the case; were hearsay, and were subsequent to the issuance of the policies. These objections were not meritorious. Without considering whether Yerby had the right to change the beneficiary in the policies, if they were issued as plaintiff contended they were, it is clear that Yerby had at least a contingent interest under them, as the policies contained the following provision: "The claim hereunder to be paid to C. C. Chandler, brother-in-law; *** or, if the member insured should survive the aforesaid beneficiary, then to any other beneficiary that may be named by him; *** or, in the absence of such named beneficiary, then to his *** administrator or executor." Besides, if the policies were issued as plaintiff contended, it was to Yerby's interest that the indebtedness which he owed the plaintiff should be paid from the proceeds of the same, if he died before paying it himself. So the declarations, written and oral, of Yerby objected to were self-deserving, and for this reason admissible. "Declarations and entries of a person, since deceased, against his interest, and not made with a view to pending litigation, are admissible in evidence in any case." Civ. Code 1895, § 5181. "Admissions made by a third person against his interest, as to a fact collateral to the main issue between the litigants, but essential to the adjudication of the cause," are received in evidence. Id. § 5191; Masse-Felton Lumber Co. v. Sirmans, 122 Ga. 297, 50 S.E. 92.

2. Error was assigned upon the admission in evidence of the proofs of the death of Yerby, signed by plaintiff, "on the ground that they were immaterial and irrelevant, and that counsel for defendant had admitted that proper proof of the death had been made." It is not apparent from this ground of the motion how this evidence, granting that it was irrelevant and immaterial, was harmful to plaintiff. It is well settled that the admission of immaterial evidence, the effect of which is harmless, is not cause for a new trial. See collation of cases on this point in 14 Michie's Enc. Dig. of Georgia Reports, 414.

3. One ground of the motion was: "Because the court erred in admitting the evidence of a number of witnesses to show that W. R. Yerby came to his death by suicide, it being stated by counsel for defendant that the evidence of said witnesses going to show suicide was not to set up the defense of suicide, but to show the condition of Yerby's health. Counsel for plaintiff objected to all the testimony hereinafterwards set out, because it was irrelevant and would tend to prejudice the jury, that it was immaterial, and would not illustrate the condition of the health of Yerby. The testimony objected to was as follows: The testimony of J. W. Matthews: 'I saw something that indicated the cause of his death, a wound in the side of the head supposed to be a pistol wound. I saw the pistol. Mr. Jarret had it, I think. I did not see how many times it had been fired.' The testimony of Sabe Moon, as follows: 'When they would send for me, I never saw him try to kill himself in my life. He would be just a little fractious."' The testimony of other witnesses tending to show that Yerby committed suicide was also set out in this ground of the motion; but the trial judge certified that no objection was made to this other testimony. We do not see wherein the testimony of Moon was hurtful to plaintiff. Nor is it apparent how the testimony of Matthews tended to prejudice the jury. It did not show or even tend to show in our opinion suicide on the part of Yerby, but merely that his death was caused by what seemed to be a pistol wound; and the admission of this testimony, even though irrelevant and immaterial, was apparently harmless, and therefore not cause for a new trial.

4. The following testimony of Henry Williams was objected to by the plaintiff: "He (Yerby) sent by me to Athens for morphine, and I got it for him...