Posner v. New York Life Insurance Co.
| Decision Date | 28 October 1940 |
| Docket Number | Civil 4198 |
| Citation | 106 P.2d 488,56 Ariz. 202 |
| Parties | ROSE POSNER, Appellant, v. NEW YORK LIFE INSURANCE COMPANY, a Corporation, Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Pima. Wm. G. Hall, Judge. Judgment affirmed.
Messrs Lewkowitz & Wein, for Appellant.
Messrs Darnell, Pattee & Robertson, for Appellee.
This is an action by Rose Posner, hereinafter called plaintiff, to recover certain benefits which she claimed were due her upon a policy issued by New York Life Insurance Company, a corporation, hereinafter called defendant. The case was tried to a jury, which returned a verdict in favor of defendant. Judgment was rendered thereon, and the case is before us for review.
The undisputed facts are as follows: On May 25, 1928, defendant issued to plaintiff its policy of life insurance which provided, among other things, for the payment of certain benefits to the latter in case of total and permanent disability due to bodily injury or disease. On March 9, 1929 defendant amended the original policy by a rider attached thereto, providing for the payment of increased disability benefits. In July, 1931, plaintiff made application for disability payments under the policy. Defendant paid such benefits to plaintiff from May 1, 1931, up to and including December 10, 1936, but refused to make any further payments, whereupon this suit was brought.
The defense thereto was a denial that plaintiff was permanently and totally disabled, within the terms of the policy, and an allegation that if she was so disabled it was caused by certain diseases or ailments with which she was afflicted prior to its issuance.
At the trial evidence was offered by plaintiff as to her condition and alleged disability. The three causes of the disability set up in the complaint were (a) a nervous breakdown, (b) arthritis, and (c) lesion of the aorta. No evidence was offered tending to sustain the claim of lesion of the aorta, and the evidence in regard to nervous breakdown was of such a nature that the jury was certainly justified in finding that it did not cause any disability whatever, nor is there any contention there was error in the presentation of this issue. The evidence in regard to the arthritis, and any disability caused thereby, was in sharp conflict. It is unnecessary that we should set it forth at length, but it is sufficient to say that it presented an issue of fact for the jury, which was resolved by it in favor of defendant. We have always held that in case of conflicting evidence, the finding of the trial court, or the verdict of the jury, is binding on us as to the facts. If, therefore, no error of law occurred sufficient to require a reversal of the trial court, the judgment must be affirmed. We examine the assignments of error in their order.
The first question is whether the court erred in refusing to strike from the complaint certain allegations in regard to the payment of premiums and disability benefits. It is the rule that while the granting of a motion to strike may be reversible error, the denying of such a motion, even though erroneous, is not a cause for reversing the case except under extraordinary circumstances. MacNeil v. Vance, 48 Ariz. 187, 60 P.2d 1078; Shill v. Jones, 21 Ariz. 465, 190 P. 77. We think the facts bring this case within the rule thus stated.
The second is as to the alleged misconduct of counsel for defendant in making the remark before the jury, "You know that an insurance company in a case of this kind always starts with two strikes against it." The abstract of record and the transcript of testimony do not show that such a remark was made, but counsel for defendant admitted in his oral argument that he did, as a preliminary to his examination of the jury on their voir dire, make it, and thereafter asked each juror whether he would allow the fact that defendant was an insurance company to prejudice him in his verdict. We can see no improper conduct in the remark.
The third is whether counsel for defendant was guilty of misconduct in his effort to bring before the jury certain testimony which it is alleged was privileged. Defendant endeavored to show (a) by the former husband of plaintiff that he had purchased insulin for his wife and had seen her make tests of her urine to determine whether diabetes existed, before the policy was issued, and (b) certain testimony given by Dr. M. D. Cohen at a divorce action between herself and her former husband. Complaint was also made of the appearance of her former counsel in the courtroom, presumably to testify in regard to communications with plaintiff in another trial. The last point was not seriously urged in the briefs or oral argument, and what little was said convinces us that there was no misconduct on the part of counsel for defendant in regard to Mr. Milton Cohen. We consider the two other matters.
Counsel for defendant made a very earnest and strenuous effort to cause the testimony of plaintiff's former husband and Dr. Cohen to be admitted, continuing these efforts even after the court had ruled several times that it was inadmissible, and this, it is contended, is reversible error for the reason that it caused the jury to believe there were material facts which plaintiff was endeavoring to conceal from it. So far as the testimony of the husband is concerned, we think it was admissible. In the first place, the parties were no longer husband and wife, and the general rule is that an absolute divorce places the former spouses in the same position as regards competency as witnesses as though there had been no marriage, and that each may testify for or against the other as to matters which came to their knowledge during the existence of the marital relation, unless such matters were in the nature of confidential communications. 70 C.J. 125, and cases cited. In other words, they may testify as to what was done by either spouse, but not as to what was said if it was in the nature of a confidential communication. We approve of this rule. Posner was not questioned in regard to any confidential communications, but as to acts done by him or by plaintiff during the marriage. We think the testimony should have been...
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