Hildebrand v. United Artisans

• Decision Date: 03 September 1907
• Parties: HILDEBRAND v. UNITED ARTISANS.
• Court: Oregon Supreme Court

91 P. 542

50 Or. 159

HILDEBRAND v. UNITED ARTISANS.

Supreme Court of Oregon

September 3, 1907

Appeal from Circuit Court, Douglas County; L.T. Harris, Judge.

Action by Robert Hildebrand, by S.J. Culver, as guardian, against the United Artisans. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action by Robert Hildebrand by his guardian, S.L. Culver against the United Artisans to recover $1,900, with interest upon a certificate issued to W.C. Hildebrand, the father of plaintiff, as a member of the order, by which it was agreed to pay the amount demanded in event of his death. Plaintiff's father was found dead in his room in Reno Nev., November 18, 1903, with a pistol clasped in his right hand, a bullet having entered his right temple. No one was present nor knew of the incident until some hours after its occurrence. The cause of the death is unknown, and can only be surmised from the surrounding circumstances. A coroner's inquest was had, the jury reporting to the effect that the deceased came to his death as a result of a gunshot wound inflicted by his own hand. No question was raised by the pleadings or proof as to his good standing in the order at the time of his death nor as to the identity of the beneficiary. Two questions were raised by the pleadings namely: (1) Has the beneficiary submitted such proof of death as will entitle him to recover? (2) Did the deceased commit suicide? The rules of the order relative to proof of death of a member of the order appear in full in Patterson v. United Artisans, 43 Or. 334, 72 P. 1095. A trial of the issues mentioned was had before a jury, resulting in a verdict for plaintiff for the sum demanded. From the judgment thereon defendant appeals.

O.P. Coshow, for appellant.

J.T. Long and A.M. Crawford, for respondent.

KING C. (after stating the facts as above).

The first error assigned and relied upon is based upon the action of the court in sustaining an objection to defendant's offer to introduce in evidence, and have marked as its exhibit, the proof of death, as a part of the cross-examination of plaintiff's witness C.L. McKenna. This witness testified on direct examination that on April 12th, and at all times since, including the date of trial, he was and is the supreme secretary of defendant, and identified a letter to John T. Long, dated April 16, 1904, written by him as secretary of the Supreme Assembly of United Artisans. The letter was received in evidence, without objection, the material portion of which reads: "Your letter of April 14th is at hand, and in reply will say we have received the proof papers in the case of W.C. Hildebrand, Jr., deceased on January 5, 1904." On cross-examination the witness was questioned as to the proof papers there referred to, in the identification of which he answered that he had reference to the proof of death of Mr. Hildebrand, stating he thought it was sent by plaintiff. Witness was then handed a document and asked to state its nature, to which he replied that it was the proof mentioned in the letter, and the only proof received, which instrument was then offered in evidence. Objection was made and sustained to its introduction as incompetent and not proper cross-examination, as well as for the special reason that a part of the instrument offered purported to be the proceedings of the coroner's inquest, by which plaintiff was not bound. Defendant's counsel insist that, since the "proof papers" were mentioned in the letter, he was entitled not only to question the witness thereon, but to introduce them in evidence notwithstanding the proof tendered included the proceedings had at the coroner's inquest. The record discloses that the witness was interrogated on cross-examination as to the matters referred to in the letter, and that no objection was made until the "proof papers" were offered in evidence. The purpose of the cross-examination, as well as the attempted introduction of the "proof" in evidence, appears to have been intended for the purpose of sustaining the claim of suicide affirmatively pleaded by the defense. Where this defense is interposed to a policy of insurance, the presumption being that death resulted from natural causes, the onus is upon the defendant to sustain the allegations to that effect. Cox v. Royal Tribe, 42 Or. 365, 71 P. 73, 60 L.R.A. 620, 95 Am.St.Rep. 752. Where the by-laws of a mutual benefit society provide that upon the death of a member the officers of the local society to which he belonged, as in this case, should furnish full proof of death upon printed blanks prepared for that purpose, and give their opinion as to the validity of the beneficiary's claim, such local officers must be considered the agents of the general society, and their statements and admissions made against the interests of the general organization are competent evidence in an action on the benefit certificate. Patterson v. United Artisans, 43 Or. 333, 72 P. 1095; Whigham v. Independent Foresters, 44 Or. 543, 75 P. 1067. The proof in this instance was sent the defendant by Mrs. Edith Plank, as the local secretary of the order; at least she so testified, and her statements to that effect are not contradicted by any positive testimony, and if they had been contradicted it would have been a question for the jury. Evidence was given tending to show that when the proof was made J.T. Long, although assisting the local secretary, was not acting as attorney for the claimant, but as any other member of the order might have done in the way of assisting the secretary in the preparation of the proof she was required under the rules to furnish, notwithstanding he afterwards became one of plaintiff's counsel in this action, and signed his name as such. It is only upon the assumption that plaintiff, in place of the local secretary, by reason of Long's assistance, furnished the proof, that the proceedings of the coroner's inquest could be deemed admissible. There being some evidence showing that he was not acting as such attorney, and that the proof was furnished by Mrs. Plank, as secretary of the local order, it then became a question for the jury to determine whether the proof was furnished by plaintiff or by defendant's local agent. The proof offered on this point by defendant was evidently intended in support of its claim of suicide, as alleged, and only admissible for that purpose. The question asked McKenna by plaintiff's counsel was for the purpose of identifying the letter offered and received in evidence; but, since he was also questioned in his direct examination as to what proof papers the letter referred to, the defense was entitled, as a part of its cross- examination, to have the proof papers identified by the witness and to mark them for subsequent reference, but it is very doubtful whether it was entitled, on cross-examination, to have them received in evidence. It was a part of its defense. Testimony of this class is sometimes admitted by the court in the exercise of its discretion, in which event its admission has been held not to be reversible error. Wills v. Russell, 100 U.S. 621, 25 L.Ed. 607. But it seems to be the well-recognized rule that, when a witness is called by one party, the opposing litigant only has a right to cross-examine upon the facts to which he testified in chief. In his direct examination McKenna did not pretend to identify nor to give the contents of the proof papers, but stated merely what the letter had reference to in that respect. If, on cross-examination, defendant can be permitted to go to the extent, not only of identifying the instrument, but of introducing it in evidence, he would thereby procure the advantage, under the pretense of cross-examination, of making him his witness in chief, and, at the same time, of depriving plaintiff of any cross-examination of the witness on points thereby elicited. It is manifest that such practice should not be encouraged. Stafford v. Fargo, 35 Ill. 481. Even though defendant's position on this point were tenable, any error that may have been committed in this respect was rendered harmless, as defendant's rights could not have been prejudiced thereby, in that all of the proof papers were subsequently admitted as a part of the defense, in the admission of which the court evidently assumed that it was a matter for the jury to determine whether the proof was furnished by the plaintiff or by defendant's local agent, and, if found as a fact to have been furnished by plaintiff, were entitled to consider the proof, with inquest attached, as an admission against plaintiff's interest, tending to support defendant's contention, and instructed the jury accordingly. We think, therefore, that defendant cannot avail itself of the alleged error of the court in refusing on cross-examination to admit the "proof papers" in evidence. Olive v. Olive, 95 N.C. 485; City of Chicago v. Peck, 196 Ill. 260, 63 N.E. 711; Seymore v. Malcolm McD. L. Co., 58 F. 957, 7 C.C.A. 593; Wills v....