Maryland Casualty Co. v. Kelly, 2952.

• Citation: 45 F.2d 788
• Decision Date: 17 November 1930
• Docket Number: No. 2952.,2952.
• Parties: MARYLAND CASUALTY CO., Inc., v. KELLY.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

45 F.2d 788 (1930)

MARYLAND CASUALTY CO., Inc., v. KELLY.

No. 2952.

Circuit Court of Appeals, Fourth Circuit.

November 17, 1930.

S. L. Sinnott, of Richmond, Va. (Sinnott & May, of Richmond, Va., on the brief), for appellant.

Stuart B. Campbell, of Wytheville, Va. (Arthur G. Miller, of Pulaski, Va., on the brief), for appellee.

Before NORTHCOTT, Circuit Judge, and McCLINTIC and HAYES, District Judges.

HAYES, District Judge.

This is an action by J. M. Kelly, receiver of the Bank of Ivanhoe, appellee, against Maryland Casualty Company, appellant, to recover $6,000 on a policy of burglary insurance indemnifying the bank for loss or damage sustained by robbery or burglary. Judgment was rendered for the plaintiff, from which the defendant casualty company appeals assigning two errors, namely,

(1) Improperly restricting the purpose of testimony relating to the use of drugs by Mrs. Huddle, the cashier, and principal witness as to the robbery; (2) improper argument of counsel.

Mrs. Huddle testified she was alone in the bank on February 5, 1927, about 11:40 a. m., when a masked man came into the bank and, pointing a pistol at her, demanded the money in the bank. She handed him $600 or $700, the cash in the drawer, and became unconscious; when she regained consciousness two hours later, she was locked in the vault and $5,600 in money was missing from the vault. About seven days later she went to the hospital, claiming to be suffering from a blow on the head which she thought had been inflicted on her at the robbery either by a blow from the robber or from a fall. Her physician, Dr. Chitwood, testified that she had been suffering, and to relieve her pains he had, from time to time, during eighteen months, personally administered to her from three to five grains of morphine per week. Dr. Chitwood opened the vault to let her out of the bank. Dr. Smith saw her seven days later when she was admitted to the hospital. He testified she was under the influence of morphine and not suffering from a blow to the head. There was other evidence that she had taken four grains of morphine and five ounces of chloroform the night before.

There was no evidence that she was under the influence of morphine at the time of the alleged robbery nor when testifying. The trial court restricted the evidence of her use of drugs to the purpose of contradiction. The evidence tended to show that she was in a hysterical condition when taken from the vault, and had hysterics and convulsions at intervals from then until taken to the hospital — they could have been feigned or involuntary. As she had testified that her condition was due to her injuries and the evidence tended to contradict her, it was competent for that purpose. But it is insisted that it should have been received for all purposes, principally for the purpose of showing she was a dope addict, and that dope addicts are incredible. Without entering upon a discussion of the tendency, if any, of the excessive use of morphine to undermine the moral attributes of the user, it suffices to say there is no sufficient evidence in the record to show that Mrs. Huddle had made such excessive use of it, and the court committed no error in restricting the evidence.

This was the third trial of the case. The counsel for defendant, in his argument to the jury, said the defendant had probably already spent...