Empire Life Ins. Co. v. Einstein

• Decision Date: 19 February 1913
• Docket Number: 4,282.
• Parties: EMPIRE LIFE INS. CO. v. EINSTEIN.
• Court: Georgia Court of Appeals

77 S.E. 209

12 Ga.App. 380

EMPIRE LIFE INS. CO. v. EINSTEIN.

No. 4,282.

Court of Appeals of Georgia

February 19, 1913

Syllabus by the Court.

A party who induces or procures a wrong ruling of the court will not thereafter be heard to complain of the ruling.

The court did not err in declining to require a witness to testify who claimed the privilege of refusing to testify because the answer sought to be elicited would tend to incriminate him.

As a general rule, it is the province of the court to determine the competency of both the evidence and the witness; and, if the judge decides that the witness is incompetent, his ruling will not be interfered with, unless it is manifestly erroneous. A trial judge may determine the competency of a witness without submitting to him questions designed to elicit specific information as to particular points. In this event, the court passes upon the competency of the witness. When, however, the witness is otherwise competent, he may decline to answer questions which tend to criminate him, and in this event the witness, and not the judge, is to determine whether the answer to the question propounded to him will have the effect of subjecting him to punishment for crime.

An exception in a policy of insurance is to be taken most strongly against the insurer. The contract is to be construed most liberally in favor of the insured.

The provision in a policy of insurance that, "if the insured shall within one year from the date hereof die as the result of a violation of the law," the amount payable under the policy shall be confined to the premiums which have been paid, with interest thereon, will not defeat or prevent recovery of the full amount of the pclicy, unless it appears that the violation of the law on the part of the insured was the direct, natural, and legally proximate cause of his death.

Though in a certain sense, the act of the insured in the present case caused his death (because he provoked the difficulty in which he was killed), yet since his death could not reasonably have been anticipated as a result of his violation of the law, and was not shown to be the natural and proper legal consequence thereof, the insurer failed to carry the burden resting upon it of sustaining its defense, and the judge did not err in directing a verdict for the plaintiff. The insurer having assumed the burden of showing that the death of the insured by homicide was the result of his own violation of the law, the usual rule that the slayer's guilt must be established beyond a reasonable doubt was not applicable, and it devolved upon the insurer to prove that the slayer was guiltless.

As no reason appears why the slayer should have killed the insured except through anger, and as the law will not justify a killing in resentment of opprobrious words, nor permit the use of a deadly weapon in resistance of a mere assault with the hands, the defendant failed to justify the killing of the insured. The circumstances by which the insurer sought to carry the burden of proving that the killing was caused by the reasonable fears of the slayer cannot be held to warrant any inference that the slayer was actuated by such fears.

Error from City Court of Camilla; R. L. Shipp, Judge.

Action by Edna B. Einstein against the Empire Life Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.

F. A Hooper, of Atlanta, and Pope & Bennet, of Albany, for plaintiff in error.

E. E Cox, of Camilla, for defendant in error.

RUSSELL J.

There are two questions raised by the record: (1) Whether the court improperly debarred the defendant from eliciting from a witness evidence which might have caused a different result; and, (2) if the court did not err in that respect, whether the verdict which the court directed was demanded by the evidence submitted.

The defendant complains that the court permitted the witness to determine for himself whether the answers to certain questions which were propounded to him would tend to criminate him. As to this we think the court correctly ruled. In a note to the fourth ground of the amended motion for new trial the trial judge sets forth what took place as to this. After counsel for the defendant had asked the witness one or more questions, the court interposed, and said to the witness: "Have you any attorney to represent you in any way in this matter? I don't know whether the witness knows his rights. I do not care to go into it if he does." The witness then answered: "Yes, sir; Mr. Davis represents me." The court then said to the witness: "Do you understand that you do not have to answer questions if you do not want to? Do you understand that view of the case?" The witness replied. "Yes, sir. I do not know." The court then said to the witness: "I shall be glad to have Mr. Davis present, and have him signify as to any question that is asked you on examination." At this point Mr. Hooper, of counsel for the defendant, said to the court: "I think the witness has a right to use privilege whenever he pleases." And thereupon the court said to the witness: "You need not answer any question you do not want to. In the absence of your counsel you can exercise your own judgment, provided you think your answer might criminate you." Counsel for the defendant thereupon objected, and contended that the court should, in each instance, pass upon the question as to whether the answer might criminate the witness. The court then said to the witness: "You heard the statement that Mr. Hooper made with reference to what you have to answer and what you do not?" The witness replied: "I do not care to tell anything about it. I do not care to testify at all." The court then said: "My ruling was made under the statement as to what you, counsel for the defendant, say is the law." After the section of the Code, which provides that "no person shall be compelled to give testimony tending in any manner to criminate himself" had been read, the court said to the witness: "You will have to be the judge; the court cannot be the judge. You will have to be the judge of what may, or may not, tend to criminate you." Thereupon Mr. Bennet, of counsel for the defendant, stated that if the witness were permitted to answer the questions which counsel sought to ask, he expected him to testify that he was first attacked by D. D. Einstein, and that before the witness shot at all, he was shot through the wrist by D. D. Einstein, and that the witness shot under circumstances of justification, believing his life was in danger. Thereupon the court said to the witness: "You have heard him state what he expected to prove by you. Now you can either tell that to the jury or not, just as you see fit. You will either have to tell it, or refuse to tell it on the ground that you fear it would incriminate you." Upon this ruling the witness replied: "I do not care to testify at all." And though the court stated that he must place his refusal to testify on the ground just stated by the court, the witness declined to testify further.

We do not think the assignment of error, when qualified by the note of the presiding judge, presents a meritorious exception; for, when the counsel, Mr. Hooper, as is expressly stated by the judge, invoked or induced the ruling which the judge first made, by his statement to the effect that the witness had the right to use the privilege whenever he pleased (although Mr. Bennet, his associate, seemed to have taken a different view), an ample opportunity was offered the witness to answer the questions, if he so desired, and there is nothing to show that he did not understand the purport of the questions from the statement of Mr. Bennet as to what he expected to prove if the questions were answered. If the judge's ruling had been based entirely upon Mr. Hooper's statement of his understanding of the law, the defendant could not complain, for nothing is better settled than that one cannot complain of a ruling which he himself invokes. He will not be heard to complain, even if the ruling be erroneous.

But aside from this, the ruling of the court was not erroneous for when a witness claims his privilege upon the ground that he may criminate himself by answering questions propounded to him, he at last, and not the court, must determine whether the information given by his response to the question will have the effect of jeopardizing his liberty, by tending to show his guilt of crime. There is nothing to the contrary of this in the ruling of the Supreme Court in Pledger v. State, 77 Ga. 242, 3 S.E. 320. In that case nothing more is ruled on this point than that the witness could not stand in silence, not claiming his privilege and permitting the court to pass upon it, and refuse to testify at all, without being in contempt of court. The court said that he might have declined to answer any question having such a tendency, and he would have been protected had he insisted upon such a right. "He did not wait for an opportunity to make the question--he made no such question--but, apprehending in advance that he might be placed in a perilous position, he refused stubbornly, before the exigency had arisen, to testify at all." In the present case, according to the explanatory note of the judge, the witness was fully apprised, by the statement of Mr. Bennet, as to the scope of the examination to which he was to be subjected, and the character of the answers expected; and, under the judge's ruling that if the answers would criminate him, he might decline to answer them, he did decline. It is true the court left it to the witness to judge whether the answers, if he answered truthfully, would tend to criminate him; and in this the court was right. Sometimes only a slight circumstance is needed to fix...