Resolute Fire Ins. Co. v. O'Rear
Decision Date | 11 January 1949 |
Docket Number | 6 Div. 773. |
Court | Alabama Court of Appeals |
Parties | RESOLUTE FIRE INS. CO. v. O'REAR. |
Application for Rehearing Stricken Feb. 1, 1949.
Chas. E. Tweedy, Jr., and Jas. L. Beech, Jr. both of Jasper, for appellant.
Newton & Selman, of Jasper, for appellee.
This cause of action is based upon breach of an alleged oral agreement to insure an automobile against damages thereto incident to collision or upset. The plaintiff, owner of the car, was awarded judgment in the court below.
It appears that the agent of the appellant company represented several insurance concerns. Among these were the Baltimore American Insurance Company of New York and the Resolute Fire Insurance Company; the latter was the defendant below. Prior to the time of the alleged agreement to insure, the appellee had a policy which covered collision damage with the former company. For some reason this contract was cancelled, and the agent of the appellant notified the insured by letter of this action.
Within a few days after the receipt of the written communication the appellee went to see the agent. With reference to this interview we quote from the record:
'
'Mr. Tweedy: He made the statement twice and the attorney added an extra word Mr. O' Rear did not put in there. I object to the attorney leading the witness.
'Q. I want to get in detail what was said on that occasion. What did you say to Mr. Sanders? A. I didn't say anything exactly. I went up and he seen me; I was aiming to talk to him about it. He said, 'Ike, you are well taken care of and you are covered.'
'Q. (repeating) 'You are covered.' A. That's right. * * *
'The Witness: Yes.'
After the recollection of the witness had been refreshed he answered this question in the affirmative: 'I want to ask you this Sergeant O'Rear: Did he say that you were reinsured?'
We have set out the above in detail in order to fairly and accurately respond to assignments of error numbered 10 and 11.
With reference to the above conversation, and after its introduction in evidence, the appellee was asked each of these questions:
'I want to ask if you didn't understand from what he told you on that occasion that you were well covered; that you had full coverage with fifty dollars deductible clause with Baltimore American, and if it were not your understanding that you had the same coverage with the same company he said he had reinsured you in?'
'Was it your understanding, Sergeant O'Rear, that you had the same type of coverage in this reinsurance he told you about that you had with Baltimore American?'
Over timely objections by the appellant, answers were allowed, and the reply to each was in the affirmative.
It cannot be questioned that the inquiries related to a very material and vital factual issue. In fact, the content of the above conversation included practically all of the evidence which related directly to the matter of the alleged oral agreement.
It is axiomatic that in the law of evidence a witness ordinarily should not be permitted to answer a question which calls for a conclusion. A failure to adhere to the doctrine would in effect be an invasion of the province of the court or jury, as the case may be.
There is a rule that a conclusion may be admissible when the inquiry to which the evidence relates cannot be reproduced or accurately described to the jury or court as it appeared to the witness.
We will seek a correct conclusion to the matter of instant concern by reviewing some authorities, first from our appellate courts.
In Saltmarsh v. Bower & Company, 34 Ala. 613, the following statement was held objectionable: 'I did not consider that this was a loan to Wm. Bower & Co.'
'Charles Wood, a witness for the defendant, after having testified to having had a conversation with the plaintiff in reference to the sale of his land to the defendant in which the plaintiff told him about the price to be paid for the land, further testified that 'He (the plaintiff) left the impression that he was taking stock for his land.'' The Supreme Court sustained the action of the trial judge in granting a motion to exclude this statement. Larkinsville Mining Co. v. Flippo, 130 Ala. 361, 30 So. 358.
In an action for false imprisonment it was held that a witness could not testify from what he saw that he got the impression the plaintiff was under arrest. Hotel Tutwiler Operating Co. v. Evans, 208 Ala. 252, 94 So. 120.
Justice Bouldin, writing for our Supreme Court, observed: Navco Hardwood Co. v. Becks, 222 Ala. 631, 134 So. 4, 8.
In W. T. Rawleigh Co. v. Hannon, 245 Ala. 266, 16 So.2d 800, our Supreme Court held that it was a conclusion of a witness and objectionable to allow the witness to testify that a person is an agent of a corporation when it is clearly apparent that the reply was based merely on a conversation the witness had previously had with the person.
Industrial Sav. Bank v. Mitchell, 25 Ala.App. 13, 140, So. 449, 451.
The Supreme Court indulged some relaxation to a strict construction of the rule in Gulf Trading Co. v Radcliff, 216 Ala. 645, 114 So. 308, 316. Therein we find: 'The witness' 'understanding,' when used in the...
To continue reading
Request your trial-
Resolute Fire Ins. Co. v. O'Rear
...Judge. In the court below the plaintiff recovered a judgment. This is the second appeal of this cause of action. Resolute Fire Ins. Co. v. O'Rear, 34 Ala.App. 249, 38 So.2d 616. This appeal was submitted on the merits only in this court on April 18, 1950. On April 29 the appellee filed a mo......
-
Chastain & Blass Real Estate & Ins., Inc. v. Davis
...error to permit a party to testify as to his 'understanding' of a contract or a letter the basis of a suit. Resolute Fire Ins. Co. v. O'Rear, 34 Ala.App. 249, 38 So.2d 616. See Industrial Savings Bank v. Mitchell, 25 Ala.App. 13, 140 So. 449. In Mobile, J. & K.C.R.R. Co. v. Hawkins, 163 Ala......
-
Carson v. Employers Cas. Co.
...Questions which assume facts not in evidence are properly excluded. Brannan v. Henry, 142 Ala. 698, 39 So. 92; Resolute Fire Ins. Co. v. O'Rear, 34 Ala.App. 249, 38 So.2d 616. Assignment of error 32 is also concerned with a question which assumes a fact not in evidence. Here a question was ......
- Hall v. State, 6 Div. 638.