Standard Life & Accident Insurance Co. v. Tinney

• Decision Date: 23 March 1896
• Citation: 73 Miss. 726,19 So. 662
• Parties: STANDARD LIFE & ACCIDENT INSURANCE CO. v. E. E. TINNEY, ADMX
• Court: Mississippi Supreme Court

19 So. 662

73 Miss. 726

STANDARD LIFE & ACCIDENT INSURANCE CO. v. E. E. TINNEY, ADMX

Supreme Court of Mississippi

March 23, 1896

March 1896

FROM the circuit court of Warren county HON. JOHN D. GILLAND Judge.

The Standard Life & Accident Insurance Co., of Detroit, Mich issued a policy of life and accident insurance to J. D Tinney, for three thousand dollars, on December 18, 1893, whereby it insured said Tinney, amongst other things, against death resulting from bodily injuries caused by external violent and accidental means. On Friday night following, December 22, the residence of said J. D. Tinney was destroyed by fire, and he perished in the flames. Mrs. E. E. Tinney, the widow, took out letters of administration upon his estate. She made proof of Tinney's death within the time and in accordance with the terms of the policy, and demanded payment of the policy, which was refused, and she brought this suit to recover the amount of the policy and interest from the time it became due. The policy sued on contained the following exceptions: "This insurance does not cover disappearance nor disability resulting wholly or partly, directly or indirectly, from any of the following causes, conditions or acts, or when the insured is under the influence of or affected by any such cause, condition or act, namely." It then proceeds to name a number of conditions and causes, and, among them, intoxication. Defendant plead in confession and avoidance, and averred that the accident which produced the death of Tinney resulted wholly or partly, directly or indirectly, from intoxication, and that the policy did not cover death under such circumstances. Issue was joined, in short, upon these pleas. Defendant opened and closed the case, as its pleas set up an affirmative defense. After introducing evidence to show that Tinney was drunk on the day the policy was issued, and for several days afterwards was drinking, defendant introduced one D. N. Hebron as a witness. Hebron testified that he lived near Tinney, and that Mrs. Tinney went to his house the night before Tinney lost his life. Counsel for defendant then asked the witness what the condition of Mrs. Tinney was when she reached his house, and what Mrs. Tinney told him as to Tinney's treatment of her. Counsel for plaintiff objected to this question. Defendant's counsel then stated that they proposed to prove by this witness that Mrs. Tinney left home that night on account of Tinney's drinking, and that he choked her while under the influence of liquor, and she left in fear of her life. They proposed to prove these facts for the purpose of impeaching the testimony of Mrs. Tinney, taken upon interrogatories propounded to her by defendant in accordance with § 1761 of the code of 1892, her deposition being on file in the case. Plaintiff objected to the evidence being introduced without having laid the foundation for impeaching Mrs. Tinney. The court sustained the objection. Defendant closed its case without reading the deposition of Mrs. Tinney.

Plaintiff objected to so much of the deposition of Hester Davenport, a witness for defendant, "as stated what Mrs. Tinney told or showed the witness." The court sustained the objection. The part of Hester Davenport's deposition excluded was the following: "He choked his wife while he was drinking, and she came into the kitchen and showed me the marks on her neck; it was bleeding. He also kicked her, and she showed me the bruise on her leg above the ankle. She told me she was going to leave home. She said, 'If I go to any colored people, he will find me and kill me, ' and I told her I would not stay and let my husband kill me, if I was her."

Plaintiff read the deposition of Mrs. Tinney, which had been taken by defendant, over defendant's objection. In her deposition Mrs. Tinney stated that Mr. Tinney was sober when she left home on Thursday night before his death. Defendant offered to introduce Mr. Hebron, after this deposition was read by plaintiff, to contradict this statement of Mrs. Tinney. Plaintiff objected, because no foundation had been laid to contradict Mrs. Tinney, and the court sustained the objection. The defendant then moved the court to enter a mistrial, so that it could be allowed to cross-examine Mrs. Tinney. The court overruled the motion. Defendant then moved the court to postpone the further hearing of the case, so that it might propound cross-interrogatories to Mrs. Tinney, based upon the interrogatories and answers thereto which plaintiff had read to the jury. This motion was also overruled. Defendant excepted to all these rulings of the court. Defendant appealed from a verdict and judgment for plaintiff, after its motion for a new trial had been overruled, and assigned the following errors: 1. The court erred in excluding parts of Hester Davenport's deposition. 2. The court erred in admitting as evidence the deposition of Mrs. Tinney. 3. The court erred in excluding the testimony offered by Hebron. 4. The court erred in refusing to allow the recall of Hebron to allow defendant to prove the facts testified to by him. 5. The court erred in refusing to enter a mistrial. 6. The court erred in refusing to postpone further hearing of the cause.

Affirmed.

Miller, Smith & Hirsch, for appellant.

The excluded testimony for defendant tended to show that Tinney began drinking nearly a week before the day on which he lost his life, and that the spree continued up to that time. The fact that he choked his wife tended to prove a very material fact, which was controverted by plaintiff's witnesses, to wit: that this spree continued during the week, and to such an extent as to cause him to be under the "influence of, or affected by, intoxication." The witness, Davenport, affirms, as facts, that the insured did choke and kick his wife. The second assignment involves a construction of § 1761, code of 1892. This section first appears in our laws in the code of 1880, § 1943. The proceeding it authorizes bears no sort of analogy to a deposition. No commission is contemplated by the statute. McLean v. Letchford, 60 Miss. 169. It is simply for the party who desires the testimony of the other party. Section 1761 gives no right to contradict the answers of the nonresident party, but manifestly leaves the use of the evidence when taken, discretionary with the party who takes it.

Dabney & McCabe, for appellee.

Plaintiff only objected to so much of the deposition of Hester Davenport as stated what Mrs. Tinney told or showed the witness, and only that much was excluded. The objection did not go to the facts which the witness proposed to testify to of her own knowledge. It was only claimed that this testimony had a tendency to prove that deceased was drunk at the time he lost his life. The evidence was objectionable, first, because if it had gone to the jury they would probably have received it as an admission against her interest. At the time the statement was made Mrs. Tinney had an interest in the policy. Admissions made by persons in their individual capacity cannot be used against them in a representative capacity. Second, the evidence was wholly immaterial.

The testimony of Mrs. Tinney was admissible in her own behalf. She was a...