New York Life Ins. Co. v. Mason

• Decision Date: 04 April 1921
• Docket Number: 3523.
• Citation: 272 F. 28
• Parties: NEW YORK LIFE INS. CO. v. MASON.
• Court: U.S. Court of Appeals — Ninth Circuit

272 F. 28

NEW YORK LIFE INS. CO. v. MASON.

No. 3523.

United States Court of Appeals, Ninth Circuit.

April 4, 1921

Walsh Nolan & Scallon, of Helena, Mont., and Fletcher Maddox, of Great Falls, Mont., for plaintiff in error.

George A. Judson and H. R. Eickemeyer, both of Great Falls, Mont for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

The defendant in error, as the beneficiary of a policy of insurance on the life of her deceased husband, brought an action against the plaintiff in error to recover on the policy. The defendant pleaded that the deceased had committed suicide before the expiration of the first two insurance years. The policy contained the provision that in the event of self-destruction during that period, 'whether the insured be sane or insane,' the insurance should be equal only to the sums paid as premiums. The deceased died as the result of two pistol wounds from a pistol which he held in his hand. The defendant contended that the wounds were voluntarily inflicted. The plaintiff contended that they were accidental. The shooting occurred in the basement of the house in which the deceased lived with his wife and child. The wife and child were absent at the time. The plaintiff testified that on returning to the house and hearing the voice of her husband calling her, she went to the basement where she found him lying on a bed; that there was propped up near the head of the bed an envelope containing money and bills amounting to $745; that her husband rose from the bed and with her assistance walked upstairs to their bedroom that a doctor was summoned and the deceased was taken to a hospital, where he died a few hours later. The defendant, assuming the burden of proving its defense so pleaded, introduced in evidence the envelope above mentioned, and which had been theretofore put in evidence at the coroner's inquest and filed in the office of the clerk of the District Court as a part of the official record of the coroner's report. The defendant also introduced in evidence the record of certain questions propounded to the plaintiff at the inquest, and her answers thereto. This testimony related to the identification of the envelope, the money contained therein, and certain statements of the deceased to the plaintiff.

The defendant having rested, the plaintiff testified in her own behalf concerning statements made by the deceased to her. She testified that on the morning of the day in which he was shot, he had said that he would go down town 'and get the gun and some shirts, and get the money that he had coming. ' She testified further that she had asked him to get the gun. Objection was interposed to evidence of oral communications between the husband and wife, on the ground that under the Montana statutes the plaintiff was forbidden to testify to the same by clause 4 of section 7891, as amended by the act of the Legislature of 1913 (Laws 1913, c. 41), and section 7892. The first of these statutory provisions provides:

'The following persons cannot be witnesses: * * * (4) Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted against any person or corporation, as to the facts of direct transactions or oral communication between the proposed witness and the deceased agent, of such person or corporation, and between such proposed witness and any deceased officer of such corporation.'

The second provides as follows:

'There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person cannot be examined as a witness in the following cases: (1) A husband cannot be examined for or against his wife, without her consent; nor a wife for or against her husband without his consent; nor can either, during the marriage or afterward, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other.'

We agree with the court below that the statute first mentioned had no application to the case. The witness was not asked to detail transactions or oral communications that she had had with a deceased party to the action or with the deceased agent of such person or corporation, or deceased officer of such corporation. As to section 7892, the court below ruled that inasmuch as the defendant had, by proving a portion of the coroner's record, introduced some testimony as to what had taken place between the plaintiff and the deceased, it had waived its right to invoke the statute. Thereupon the plaintiff testified that she had asked her husband to get the gun because some one had broken in the back door, and some one was around the house that night, and that he had promised to get it. Subject to the same objection, the plaintiff testified that her husband told her, after he was shot, that he had sold his mining stock in consequence of their intention to buy a house nearer to town. She further testified:

'He told me, 'I bought that gun, and it shot me twice,' and he told me not to touch it; that it shot repeatedly; that it might shoot me. He told me he did not mean to shoot himself, and said, 'Why would an accident happen like this?' and said that he did not think he was shot seriously.' There were other similar statements detailed by the witness. The ruling of the court in admitting that testimony over the said objections advanced thereto is assigned as error.

The statute of Montana, section 7892, has not been construed by any decision of the Supreme Court of that state. The defendant directs attention to the fact that the statute differs from that of several of the states in that the inhibition is not limited expressly to confidential communications, but extends to all communications between husband and wife. That difference, however, is not believed to be material. In 4 Wigmore on Evidence, p. 3263, it is said:

'In many jurisdictions this fundamental element of confidence is not expressly named in the statutory enactment; it privileges 'any communication.' Some courts, however, have construed this phrase in the spirit of the correct principle, and have implied a limitation to confidential communications. Others have literally applied the words of the statute, which is thus allowed to create an intolerable anomaly in the law of privileged

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