Equitable Life Assurance Society v. Bailey

• Decision Date: 23 May 1924
• Citation: 203 Ky. 339
• Court: Kentucky Court of Appeals
• Parties: Equitable Life Assurance Society of the United States v. Bailey.

203 Ky. 339

Equitable Life Assurance Society of the United States v. Bailey.

Court of Appeals of Kentucky.

Decided May 23, 1924.

Appeal from Graves Circuit Court.

BRUCE, BULLITT & GORDON, WM. MARSHALL BULLITT, ROBERT G. GORDON, LEO T. WOLFORD and ALEXANDER & GREEN for appellant.

HOLIFIELD, GARDNER & McDONALD and BUNK GARDNER for appellee.

OPINION OF THE COURT BY JUDGE CLARKE — Reversing.

By two combined accident and life insurance policies, appellant insured the life of O. W. Bailey for $10,000.00 ordinary life insurance, with the further agreement that in case of death caused solely by accident, it would, instead of $10,000.00, pay double that amount, or $20,000.00. About two months later insured took his life by drinking carbolic acid. Shortly thereafter his widow, as beneficiary, instituted this action on the policies and recovered a judgment for $20,000.00, and the company has appealed.

For reversal it is insisted that the court erred, (1) in permitting Mrs. Bailey to testify concerning verbal statements of, transactions with, and acts done by her deceased husband, (2) in permitting a recovery under the double indemnity clause of the policy, (3) in overruling defendant's motion for a peremptory instruction, (4) in giving instruction No. 1, and (5) in permitting physicians, in response to hypothetical questions, to express the opinion that Bailey was insane.

1. Mrs. Bailey, the beneficiary, was permitted to testify, over defendant's objection, how her deceased husband acted, what he did, some things he said, and how he looked shortly before his death, in support of her contention in avoidance of the suicide clause in the policy that he was so insane at the time that he did not understand or appreciate what he was doing.

Subsection 2, section 606 of the Civil Code provides:

". . . No person shall testify for himself concerning any verbal statement of, or any transaction with, or any act done or omitted to be done by one who is . . . dead when the testimony is offered to be given. . . ."

As Mrs. Bailey was testifying for herself, and her husband was dead when the testimony was offered, it would seem clear that this section positively forbids her testifying concerning verbal statements of, transactions with, or acts done or omitted to be done by him. It is difficult to conceive how this language affords ground for a contention that such testimony by Mrs. Bailey in this case was competent.

Moreover, in numerous cases we have held that similar evidence offered under like or analogous circumstances was incompetent under this code provision. Turner v. Mitchell, 22 Ky. L. R. 1784, 61 S. W. 468; Northrip's Admr. v. Williams, 30 K. L. R. 1279, 100 S. W. 1192; Vannatta v. Willett's Admr., 103 Ky. 354, 45 S. W. 85; Manhattan v. Beard, 112 Ky. 455, 66 S. W. 35; Townsend v. Wilson, 114 Ky. 504, 71 S. W. 440; Mutual Life Insurance Co. v. O'Neil, 116 Ky. 742, 76 S. W. 839; Mutual Protective League v. Cole, 160 Ky. 805, 170 S. W. 184; Barnett's Admr. v. Brand, 165 Ky. 616, 177 S. W. 461; Kentucky Utilities Co. v. McCarty's Admr., 169 Ky 38, 183 S. W. 237; Young v. Bank of Sweetwater, 187 Ky. 71, 218 S. W. 463; L. & N. R. Co. v. Horton, 187 Ky. 617, 219 S. W. 1084.

Our attention, however, is called by counsel for appellee to quite a number of other cases in which it has been held that such evidence was competent, or that its admission was not error. In several of these cases the question was not raised, or the testimony was rendered competent in rebuttal by reason of testimony offered by the other side, and for one or the other of these reasons, the following cases relied upon by appellee are rendered inapplicable: Switchman's Union v. Johnson, 32 K. L. R. 583, 105 S. W. 1193; Sovereign Camp of Woodmen v. Landrum, 158 Ky. 841, 166 S. W. 598; North River Ins. Co. v. Walker, 161 Ky. 368, 170 S. W. 983; Columbian Nat. Life Ins. Co. v. Wood, 193 Ky. 395, 236 S. W. 562.

In Illinois Life Insurance Co. v. Delang, 124 Ky. 569, 99 S. W. 616, and Fidelity & Casualty Co. v. Cooper 137 Ky. 544, 126 S. W. 111, the wife was neither a party to the action nor a beneficiary under the policy, and these, too, therefore, are not in point, but the cases of Metropolitan Life Ins. Co. v. Thomas, 32 K. L. R. 770, 106 S. W. 1175; Bankers' Frat. Union v. Donahue, 33 K. L. R. 196, 109 S. W. 878; and Aetna Life Ins. Co. v. Bethel, 140 Ky. 609, 131 S. W. 523, are directly in point and cannot be distinguished since they hold that the beneficiary may testify in his or her own behalf as to what he or she saw decedent doing.

In the first of these, the Thomas case, the court held the evidence competent because it was not a communication between husband and wife, but that fact only rendered it inoffensive to subsection 1 of section 606, and the court's attention evidently was not called to subsection 2, supra, for no argument was, or could have been, offered to show it was not violative thereof.

The Donahue case also holds such evidence competent for the same insufficient reason, and upon authority of the Thomas case, while the Bethel case cites, in support of its like holding, the Thomas, Donahue and Cooper cases, and ...