Fidelity & Cas. Co. v. Johnson

• Decision Date: 25 February 1895
• Citation: 17 So. 2,72 Miss. 333
• Parties: FIDELITY & CASUALTY Co. v. GEORGIANA JOHNSON
• Court: Mississippi Supreme Court

17 So. 2

72 Miss. 333

FIDELITY & CASUALTY Co. v. GEORGIANA JOHNSON

Supreme Court of Mississippi

February 25, 1895

FROM the circuit court of Pike county, HON. W. P. CASSEDY, Judge.

Action by appellee against appellant on an insurance policy for $ 1,000, insuring the husband of appellee, an employe of the Illinois Central Railroad Company, against "bodily injuries sustained through external, violent and accidental means." The assured was hanged by a mob during the life of the policy. Plaintiff recovered judgment for the full amount of the policy. Motion for new trial overruled. Defendant appealed. The opinion contains such further statement of the case as is necessary to an understanding of the questions decided.

Affirmed.

A. C McNair, for appellant.

The motion of defendant to compel the personal attendance of the witness, Barnes, should have been sustained. Code 1892 § 1756. It is immaterial that the witness was a nonresident and beyond the jurisdiction. The motion should have been sustained, with the condition that the defendant should, if possible, procure the attendance at its own expense. This would have given defendant an opportunity to compel the personal attendance of the witness, which was very essential to its rights.

There was no evidence sufficient to prove the payment of the premium for April, 1892, and the burden of proof was on plaintiff as to this. The railroad company was not the agent of defendant in collecting the premiums. It was not the duty of Watkins, the paymaster, to collect the orders, but it was the duty of Johnson, under the contract, to pay the premiums or to leave the money in the hands of the paymaster. Failing in this, the policy was void. On this point I refer to Bernheimer v. Hahn, 65 Miss. 459; 37 Tex. 427; 2 E D. Smith (N. Y.), 234; 21 Ark. 321; 7 Rich. (S. C.), 65; 18 W.Va. 299; 61 Mich. 395; 6 Cush., 93; 19 S.W. 455; 29 N. E. Rep., 219. Relief Association v. Post, 122 Pa. 579, S.C. 9 Am. St. R., 147, is decisive of this case.

Hanging by a mob is certainly foreign to all of our preconceived ideas of death by accident. According to my conception, there is not one element of an accident. Southard v. Assurance Co., 34 Conn. 574; 1 Am. & Eng. Enc. L., p. 92 and note.

W. B. Mixon and J. B. Sternberger, for appellee.

The court did not err in overruling defendant's motion to require the attendance of plaintiff's nonresident witness whose deposition had been taken. Section 1756, code 1892, provides that the party against whom the witness was examined may procure the attendance of the witness at the trial. The defendant had the right and the opportunity to procure the attendance of the witness. This was virtually an application for a continuance, with no grounds to support it.

We submit that the terms of the policy in regard to payment of the premium were complied with, and that the jury was properly instructed.

The definition of an accident given in Worcester's dictionary is not the legal definition, and does not give the meaning applicable to the word as used in this policy. The proper legal definition is given in 1 Am. & Eng. Enc. L., p. 87. We submit that all controverted questions of fact were settled by the verdict of the jury, and that the judgment should be affirmed.

OPINION

WOODS, J.

There was no error in the court's action in overruling the appellant's application to compel the attendance of appellee's witness, Barnes, in open court. Section 1756, code of 1892, provides for the procuring the attendance in open court of a witness whose deposition has been taken by the opposing party. The language of the section is as follows: "Depositions taken, certified and returned in pursuance of law, shall be admissible as evidence in the cause; but when the deposition of any witness shall be taken, the party against whom the witness was examined may procure the attendance of such witness at the trial of the cause, and may put the witness on the stand in open court as the witness of the party who procured his deposition, and may cross-examine him as the witness of such party, who shall be entitled to re-examine the witness in open court; but the party procuring such oral examination shall be liable for all the costs thereof."

At the time this motion was made, and by the court overruled, Barnes was, and for a long while had been, living in New Orleans La. He was without the jurisdiction of the court, and beyond the reach of its process. The attempt to procure his attendance, then and there, would have been futile and vain, and the court properly refused...