Nat'l Council v. Owen

• Decision Date: 25 May 1915
• Citation: 1915 OK 359,47 Okla. 464,149 P. 231
• Court: Oklahoma Supreme Court
• Parties: NATIONAL COUNCIL, KNIGHTS AND LADIES OF SECURITY, v. OWEN.

1915 OK 359

149 P. 231

47 Okla. 464

NATIONAL COUNCIL, KNIGHTS AND LADIES OF SECURITY, v. OWEN.

Supreme Court of Oklahoma

Decided: May 25, 1915

Syllabus

¶0 1. APPEAL AND ERROR--Harmless Error--Admission of Evidence--Life Insurance. Where the answer of defendant charges that deceased had taken out large amounts of insurance in various companies, with a fraudulent design to maim himself and defraud said insurance companies, and the evidence shows deceased to have carried a large amount of insurance, and to have come to his death by reason of a gunshot wound, inflicted by himself, and the evidence as to the shooting was circumstantial, the case will not be reversed because the trial court admitted evidence of the good reputation of deceased.

2. CONTINUANCE--Admissions to Prevent-- Impeachment--Prior Contradictory Statements--Deposition. Where a party agrees that the statements contained in an application for continuance may be read as the deposition of the absent witness, such party will not be allowed to impeach said testimony by showing that the witness had made prior statements inconsistent with and contradictory of the statements therein contained, without the attention of the witness having first been called thereto.

3. INSURANCE--Life Policy--False Statement in Application---- Effect. A false statement in answer to a question in an application for insurance, which is made a strict warranty by the terms of the application and certificate, will avoid the certificate, in the absence of any allegation or proof of any fact that would amount to a waiver thereof.

4. SAME-- Question for Jury--Conflicting Evidence. The truth or falsity of warranties in an application for insurance, where there is a conflict in the evidence, is a question of fact for the jury.

Error from Superior Court, Grady County; Will Linn, Judge.

Action by Lulu Owen against the National Council, Knights and Ladies of Security. Judgment for plaintiff, and defendant brings error. Reversed and remanded for new trial.

Kane, C. J., dissenting.

C. C. Herndon and Reford Bond, for plaintiff in error.

F. E. Riddle, for defendant in error.

HARDY, J.

¶1 Defendant in error commenced this action against plaintiff in error in the superior court of Grady county on a beneficiary certificate issued to Edward G. Owen, in his lifetime, in the sum of $ 3,000. The petition was in the usual form, and demanded judgment in the sum of $ 1,800, which it was alleged was due according to the terms of the certificate. In its first amended answer defendant society as a defense alleged that the insured had made certain false statements in his application for the certificate in question, and that such statements were warranties, and that by reason thereof said certificate never became effective as a contract of insurance; and, further, that said Edward G. Owen had intentionally inflicted upon himself the wound that caused his death, and therefore the beneficiary certificate was prevented by its terms from being of any effect whatever. Reply was filed, and at the trial plaintiff in error filed a motion for a continuance on the ground of absence of a certain witness. Defendant in error agreed that said application might be read as the depositions of the absent witness, and the motion was thereupon overruled, and the case tried to a jury, resulting in a verdict against the society. Motion for a new trial was overruled, and the case brought here for review.

¶2 Various assignments of error are considered, under four propositions, in the brief of counsel, and we shall adopt the order of counsel in our consideration of the same.

¶3 The first proposition presents error on the part of the court in admitting, over the objections and exceptions of defendant, testimony as to the good reputation of deceased, and error in charging the jury that such evidence was proper for their consideration and might be considered by them in arriving at their verdict.

¶4 In Great Western Ins. Co. v. Sparks, Adm'r, 38 Okla. 395, 132 P. 1092, 49 L. R. A. (N. S.) 724, the assured was the same as in the instant case. The defense there was that the assured had made certain false statements in his application for insurance, and evidence of the reputation of assured was admitted at the trial. This was held to be error, and in so holding the court said:

"The general character of the insured was not put in issue, except in so far as it was incidentally assailed by the allegations of the petition [answer]. The allegations of fraud were specific, and evidence tending to support them was direct, and not circumstantial. Under such circumstances, evidence of the general good character of the insured was inadmissible."

¶5 The fraud complained of was the false statements made by the insured in his application, and the evidence thereof was direct. In the instant case, in addition to alleging that insured made false statements in his application, it is alleged, further, that the insured took out accident policies in numerous accident insurance companies, amounting to a large sum of money, and deliberately and intentionally shot himself in the foot, with the intention of injuring and maiming himself in order to make a false and fraudulent claim against said accident insurance companies, and the said injury so inflicted resulted in the death of the assured, and that it was provided by the terms of said policy that, "should the death of said Edward G. Owen occur in consequence of violation of the laws of the United States or of any state or territory of the United States, then such certificate shall be void," and that the attempt of the said Edward G. Owen to defraud said insurance companies was in violation of the laws of the United States and of the state of Oklahoma. The evidence tended to show that the deceased had taken out policies in six or seven insurance companies, amounting to a total of $ 17,000 or $ 18,000, and that his death resulted from a gunshot wound in the foot. The evidence as to the shooting is purely circumstantial, and it became a material inquiry as to whether said shooting was accidental, or intentionally done in pursuance of the alleged plan to defraud the insurance companies; and if so intentionally done, the policy by its terms would be void.

¶6 In W. O. W. v. Welch, 16 Okla. 188, 83 P. 547, the defense was that the insured came to his death in consequence of his violation of the laws of the territory of Oklahoma, and the intent of the deceased at the time of the shooting which resulted in his death became a material matter of inquiry. The evidence as to his reputation was admitted, and the action of the court in so doing was assigned as error. The Supreme Court of the territory overruled this contention, saying:

"Where intent of the party charged is a material inquiry, and the facts and circumstances shown in evidence leave the question of intent in doubt, the character of the party charged may be shown to aid in the determination of such question."

¶7 In the case at bar the assured, whose acts are in question, is dead, and evidence as to the shooting which resulted in his death is circumstantial, and it is a material inquiry as to whether such shooting was accidental, or was intentionally done in pursuance of a fraudulent plan to take out large amounts of insurance, and then maim himself for the purpose of defrauding the insurance companies.

¶8 The early English cases recognized an exception to the general rule excluding evidence of reputation in civil cases, that where a party whose acts are in question is dead and unable to testify, and his intention is material, evidence as to his character may be introduced to offset other evidence calling in question the acts of said party. In the case of Doe ex dem. Stevenson v. Walker, 4 Esp. 50, it was sought to impeach a will, and one of the subscribing witnesses sought to impute fraud to the other two, who were dead. Lord Kenyon said:

"That he was of opinion the evidence was admissible. * * * In the great case of Joliffe's Will Lords Dudley and Ward and other persons were examined as to the character of the persons by whom the will was prepared, and the legality of admitting such evidence was not doubted."

¶9 In Bishop of Durham v. Beaumont, 1 Camp. 207, Lord Ellenborough said:

"I fully accede to the doctrine laid on in Doe on the Demise of Stevenson v. Walker. There the attesting witnesses whose character was disputed were dead, and it was properly held that the party claiming under the will should have the same advantage as if they were alive. In that case they must have been personally adduced as witnesses, and their character would have appeared on their cross- examination, and, being dead, justice required that an opportunity should be given to show what credit was to be attached to their attestation of the will."

¶10 In Provis et al. v. Reed, 5 Bing. 435, Best, C. J., said:

"In many cases necessity forms the law. The necessity of admitting the evidence in this case is manifest, and the two decisions which have been cited, one of them from no less an authority than Lord Kenyon, are clearly in point. I have repeatedly tendered such evidence myself in similar cases when at the bar. I have had it tendered on the other side, and have never objected, and the common practice of Westminster Hall has always been to receive it. That practice is perhaps better evidence of the law even than decided cases."

¶11 See, also, 3 Blackstone's Commentaries, p. 368.

¶12 A similar exception has been recognized in this country. In Ward v. Brown, 53 W. Va. 227, 44 S.E. 488, which involved the execution of a will prepared by an attorney by the name of Knight, who was dead, and to whom was imputed fraud, it was said:

"It is well settled that evidence of character of third persons as well as parties is admissible to a limited extent and in an exceptional way, even when parties are alive. That being true, the reason is much stronger when death has closed the lips of the

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