Hill v. Aetna Life Ins. Co.

• Decision Date: 16 December 1908
• Citation: 63 S.E. 124,150 N.C. 1
• Parties: HILL v. AETNA LIFE INS. CO.
• Court: North Carolina Supreme Court

63 S.E. 124

150 N.C. 1

HILL v. AETNA LIFE INS. CO.

Supreme Court of North Carolina

December 16, 1908

Appeal from Superior Court, Buncombe County; Peebles, Judge.

Action by Henry Hill against the AEtna Life Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed.

It was error to strike out proofs of death in an action on an accident policy because of the testimony of a witness that he had sent them by plaintiff's authority, but that plaintiff had not seen them, as the court thereby assumed the witness' testimony to be true.

Jas. H Merrimon and Jas. G. Merrimon for appellant.

Julius C. Martin, for appellee.

CLARK C.J.

John Hill took out an accident policy for $1,000 in the defendant company. The policy provided that, though the assured came to his death by accident, yet, if it occurred through certain specified means, the defendant would not be liable. One of these provisions exempted the company from liability if the assured was killed "entering or trying to enter or leave a moving conveyance using steam as a motive power." The answer admitted that the death occurred from injuries sustained in being run over by a railroad train, but the defendant contended that the assured received such injuries while trying to leave a railroad car while the train was in motion. There was no proof that the assured was seen on the car or was hurt while leaving it while in motion.

The defendant proved by a witness that, just after a passenger train running 25 to 30 miles an hour had passed, he saw the deceased, struggling and falling along beside the train, that witness ran there as quickly as he could, rolled the man over on his face, and commenced to talk to him. The court properly excluded any evidence as to what the injured man stated as to how he had sustained his injury. Though the time which had elapsed was brief, the conversation was not a part of the res gestae. It was not exclamatory, but narrative, and therefore hearsay and incompetent. Bumgardner v. Railroad, 132 N.C. 440, 43 S.E. 948. In Seawell v. Railroad, 133 N.C. 515, 45 S.E. 850, the statements admitted were as to declarations made during the transaction, and a part of the res gestae, and not a narration. The same is true of Means v. Railroad, 124 N.C. 578, 32 S.E. 960, 45 L R. A. 164. The evidence offered of declarations made a few minutes still later by the deceased as to the manner in which he had been injured were, of course, incompetent. The fact that the plaintiff had repeated one of these statements made to himself did not make it competent. It was merely hearsay still. A witness for plaintiff testified that he saw the train run over the assured, that it was running four or five miles an hour. Declarations made by the plaintiff, the beneficiary of the policy, as to statements by the deceased of the manner in which he had been killed, and not denied by him, were incompetent. The plaintiff knew nothing of the matter, and no admission of the truth of the statements could be drawn from his failure to deny them.

Among the proofs of death, which the plaintiff had filed with the defendant company, was an affidavit by M. J. Hill, which stated...