Taylor v. Connecticut Fire Ins. Co.

• Decision Date: 17 July 1926
• Docket Number: No. 3957.,3957.
• Parties: TAYLOR v. CONNECTICUT FIRE INS. CO.
• Court: Missouri Court of Appeals

285 S.W. 1012

TAYLOR v. CONNECTICUT FIRE INS. CO.

No. 3957.

Springfield Court of Appeals. Missouri.

July 17, 1926.

Appeal from Circuit Court, New Madrid County; H. C. Riley, Judge.

Action by John E. Taylor against the Connecticut Fire Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Ward & Reeves, of Caruthersville, for appellant.

Geo. H. Traylor, of New Madrid, and Jas. V. Baker, of Morehouse, for respondent.

BRADLEY, J.

This is an action on a fire insurance policy. The trial was to a jury, and plaintiff recovered, and defendant appealed.

The petition in form is conventional, and asks judgment for $1,200 and interest. The answer is (1) a general denial; (2) a charge that plaintiff himself, or by agent, set fire to the house wherein the property insured was situate; and (3) that the policy was void because, after its issue, plaintiff gave a chattel mortgage on the insured property in contravention of a clause in the policy. The reply was a general denial. Error is predicated on (1) the exclusion of certain evidence; (2) on instruction No. 1 given for plaintiff; (3) on the refusal of instruction No. 2 requested by defendant; and (4) on the amount of the verdict.

The policy sued on was destroyed in the fire in question and no copy was introduced. But the evidence shows that it covered household goods and a piano. Plaintiff's family, so far as appears, consisted of himself, wife, and 14 year old daughter. Their home was in Morehouse, Mo., but they had not for a short time prior to the fire been staying at their home. The fire occurred between 10 and 11 o'clock p. m. January 2, 1924, and the loss was total. At the time of the fire plaintiff and his family were at a hotel in Morehouse, a short distance from their home. On the evening of the fire, plaintiff and his wife and daughter were at their home from about 7 to 8:30 or 9 o'clock, and plaintiff at that time made a fire in the heater, or had done so earlier in the afternoon. They cleaned up the house and returned to the hotel about 8:30 or 9 o'clock. Plaintiff signed a written statement to the effect that before they went to their house that evening his wife made the statement that "she was going to burn the house and get her money out of it," and that when he and his wife and daughter left the house on the evening mentioned that his wife lighted a candle and placed it in the corner close to the coal oil can, and that they went away and left this candle burning. This statement was sworn to before a notary on January 15, 1924.

Plaintiff admitted signing the statement, but claimed that he could not read, and that it was not read to him, and that he was told it was a paper necessary for him to sign in order to get his insurance. He denied that his wife had said or done the things attributed to her in the statement, and the wife also denied such; also the daughter, who was present all the time that her father and mother were at the house on the evening in question, and who returned to the house for an umbrella after "they had gone away a short distance, testified that no candle was lighted and placed. Defendant offered the evidence of two witnesses, both of whom participated in the preparation of the statement, and their evidence was corroborative of the statement. But at most the evidence on the defense that plaintiff burned the house, or connived at and participated in the burning only made an issue of fact for the jury. There is no contention otherwise.

When plaintiff's wife was on the stand, she was asked on cross-examination about a letter she had written to a man by the name of Medcalf in Memphis, Tenn. The letter was offered in evidence, but on objection was excluded. The letter is printed in the record, but no complaint is made because of its exclusion. The letter was written January 23, 1924, and from its contents it would not be unreasonable to infer that Mrs. Taylor and Medcalf were at least good friends. The record respecting the assignment based on the exclusion of evidence shows as follows:

"Q. This Medcalf I asked you about, you did bed up and sleep with him in Memphis?

"Mr. Traylor: Court please, we object to that, immaterial and attempting to prejudice the jury on statements of that character. (Objection sustained; defendant excepts.)

"Mr. Gallivan: We ask that counsel be rebuked for asking such questions in the presence of the jury, as it has been attempted before.

"Mr. Reeves: That is competent on the credibility of this witness, and I further add to the question, `While she and this man Taylor were married to each other as man and wife.'

"Mr. Gallivan: We object; immaterial, and wouldn't show anything in this lawsuit, except to prejudice the jury. (Objection sustained; defendant excepts.)"

In Wendling v. Bowden, 252 Mo. 647, loc. cit. 697, 161 S. W. 774, 789, an old rule in point is quoted thus:

"`When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend to test his accuracy, veracity, or credibility, or to shake his credit by injuring his character. He may be compelled to answer any such question, however irrelevant it may be to the facts in issue, and however disgraceful the answers may be to himself, except' where the answer might expose him to a criminal charge."

And in State v. Davis, 284 Mo. 695, loc. cit. 704, 225 S. W. 707, 709, the court used this language:

"On cross-examination a witness may be asked any question which would test his or her accuracy or veracity, .however irrelevant the question may be to the facts in issue, or however disgraceful the answer to the witness, except where the answer would expose a witness to a criminal charge. State v. Long, 201 Mo. loc. cit. 675 and cases cited; State v. Potts, 239 Mo. 413 . The offer was a perfectly proper one, and it was error to exclude any proper question which would tend to impeach the veracity of the witness. It is not necessary to say that the error in that regard was alone sufficient to warrant a reversal of the case; but, inasmuch as the case must be retried, the court should, on another trial, permit the question to be asked."

On the objections made, the evidence sought was improperly excluded. While defendant makes no assignment based on the exclusion of the letter, counsel say in their brief that the letter was offered in order to show good faith in interrogating Mrs. Taylor respecting her relations with Medcalf. We might say, in passing, that we do not think that the letter, under the facts presented in this record, is competent for any purpose.

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