Stanley v. Aetna Insurance Co.

• Decision Date: 18 January 1902
• Citation: 66 S.W. 432,70 Ark. 107
• Parties: STANLEY v. AETNA INSURANCE COMPANY
• Court: Arkansas Supreme Court

66 S.W. 432

70 Ark. 107

STANLEY v. AETNA INSURANCE COMPANY

Supreme Court of Arkansas

January 18, 1902

APPEAL from Jefferson Circuit Court, JOHN M. ELLIOT, Judge.

Reversed.

Judgment reversed and remanded.

White & Streett and Carroll & Pemberton, for appellant.

The court erred in compelling appellant, on cross-examination, to testify as to the burning of her property in Louisville, Ky 1 Greenl. Ev. § 52; 1 Tayl. Ev. § 317; 11 Am. & Eng. Enc. Law, 503; 65 Ark. 284; 109 Mass. 457; 18 N.Y. 589; 59 Vt. 315; 58 Ark. 468-9; 44 N.H. 419; 59 Ark. 105; 34 Ark 469; 39 Ark. 278; 45 Ark. 165. It was error to admit evidence tending to show that appellant's husband had been indicted for the burning of the insured building. 34 Ark 257; 43 Ark. 99; 59 Ark. 473; 60 Ark. 450; 76 N.Y. 288; 7 N.Y. 378; 130 N.Y. 141; 2 Wend. 255; 7 Daly, 245; 37 S.W. 638; 40 S.W. 747.

Austin & Taylor, for appellees.

There was no error in admitting evidence tending to impeach the appellant's credibility. 61 Ark. 56; 16 Mich. 43. Even if the question as to the indictment was incompetent, since it was unanswered, it was not reversible error. 1 L. R. A. 220; 19 id. 148; 35 Vt. 391; 58 Vt. 214. It was within the discretion of the trial judge to admit the question on cross-examination. 58 Ark. 473; 94 U.S. 76; 77 Me. 380; 38 N.J.L. 471; 66 U.S. 226; 36 Ark. 550; 42 N.Y. 270; 34 N.Y. 223; 24 N.Y. 298; 16 Mich. 40; 57 Wis. 251; 24 Wis. 70; 1 Thomps. Trials, § 467.

OPINION

BUNN, C. J.

This is a suit on a fire insurance policy, instituted in the Jefferson circuit court on the 13th day of February, 1896, by the appellant, Mrs. E. E. Stanley, the holder of the policy, against the appellee, the Aetna Insurance Company of Hartford, Connecticut, for the sum of $ 1,370, damages for the total loss of her house and furniture, and injury to the fencing,--her residence in Pine Bluff, Arkansas,--by fire on the night of the 6th of December, 1895.

The defendant company answered, admitting the issuance and delivery of the policy of insurance to the plaintiff, and the occurrence of the fire and destruction of the residence building, but denying that the loss to the furniture and other articles of personal property was to the extent claimed in plaintiff's complaint, and any damage whatever to the fencing, and alleged not only gross negligence on the part of the plaintiff in the care of said property and the protection of the same, but complicity in, and connivance at, said burning, to obtain the insurance thereon as aforesaid.

On the trial of the cause, and on the cross-examination of the plaintiff as a witness, she was asked various questions touching her past life, covering a period of twelve or fifteen years; and, among other things in this connection, she was asked if, while residing in Lexington, Kentucky, she did not have insurance upon her residence there, and if the same was burned down while under such insurance. This question she answered in the affirmative, with the additional or qualifying statement that she had on the house a very small amount of insurance. After further questioning and answering, plaintiff's counsel objected to the evidence thus adduced, and moved the court to exclude the same from the jury, which motion the court overruled, and permitted the evidence to go to the jury; to which evidence the plaintiff objected, and to the refusal to reject same she excepted. Similar interrogations were propounded to her as to the insurance on and burning of another house in Pine Bluff, upon which there were like rulings of the court, and exceptions taken.

Our attention is called to the ruling of this court on an identical state of facts in Lancashire Insurance Company v. Stanley, the plaintiff in this cause, ante, p. 1, reported in 70 Ark. 1, 62 S.W. 66. It will be seen, however, that the question there was differently presented from what it is in this case. For instance, the questions and answers were not excepted to in the court below; in the next place, the case was decided in the court below in favor of the plaintiff, showing that the jury were not influenced by that evidence; and, in the third place, the question in that case arose upon an instruction in which that particular point and another were involved, which latter itself was material, and touching which the court held that the court committed a reversible error, to-wit, in not giving the instruction to consider the interest of witness. So that it does not appear that any positive ruling upon the admissibility of this evidence by this court in that case was made, and for that reason, in a case like this, where the facts are somewhat different, we are left free to rule upon the question as presented now.

This character of cross-examination is permissible only where its object and tendency is to affect the credibility of the witness under cross-examination. In section 2959, Sandels & Hill's Digest, it is provided that "a witness may be impeached by the party against whom he is produced by contradictory evidence, * * * by evidence that his general reputation for truth or immorality renders him unworthy of belief, but not by evidence of particular wrongful acts, except that it may be shown by the examination of a witness, or record of a judgment, that he has been convicted of a felony." This statute is quoted only because its provisions are incidentally referred to in the case now cited.

The leading case of this court, on the subject of the admissibility of such evidence as we have now under consideration, is that of Hollingsworth v State, 53 Ark. 387, 14 S.W. 41, in which the court, quoting from a New York case, said: "This shows that upon a cross-examination of a witness, with a view of testing his credibility, inquiries are proper as to facts not competent to be proved in any other way. Such inquiries do not relate to the issue directly upon trial, but relate only to the credibility of the witness. They are entirely collateral to the principal issue. As to the former, the same strictness is not required when the evidence is confined to the cross-examination of the witness introduced by the opposite party. In such examination the presumption is strong that the witness will protect his credibility, as far, at least,...