Towne v. Northwestern Mutual Life Insurance Co., of Milwaukee

• Citation: 58 Idaho 83,70 P.2d 364
• Decision Date: 15 July 1937
• Docket Number: 6370
• Parties: MABEL C. TOWNE, Respondent, v. NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY OF MILWAUKEE, WISCONSIN, a Corporation, Appellant
• Court: Idaho Supreme Court

70 P.2d 364

58 Idaho 83

MABEL C. TOWNE, Respondent, v. NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY OF MILWAUKEE, WISCONSIN, a Corporation, Appellant

No. 6370

Supreme Court of Idaho

July 15, 1937

TRIAL-EXAMINATION OF JURY-IMPROPER REMARKS OF COUNSEL-INSTRUCTIONS-WITNESSES-CROSS-EXAMINATION-EVIDENCE - OPINIONS OF WITNESSES - RES GESTAE - APPEAL - RECORD - MATTERS PASSED UPON.

1. In suit on life policy, question asked by plaintiff's attorney in voir dire examination of jury concerning whether any of them objected to a poor widow suing an insurance company was not prejudicial error where court told jury to overlook such remark and also gave specific written instruction to disregard remark.

2. In suit on life policy where insurer admitted execution of policy and relied solely upon suicide clause for its defense permitting plaintiff to introduce policy after insurer's opening statement but prior to introduction of its evidence was not error.

3. Where witness was asked on direct examination if he saw insured on Saturday and Sunday, questions asked on cross-examination concerning circumstances under which insured was seen on Sunday were not objectionable on ground that they related to matters not gone into on direct examination. (I. C. A., sec. 16-1205.)

4. Where witness testified on direct examination that he found insured dead in cabin and examined gas stove, questions asked on cross-examination concerning what was on stove were within legitimate scope of cross-examination. (I. C. A., sec 16-1205.)

5. A witness may be cross-examined not only concerning facts stated in original examination, but concerning other facts connected with them directly or indirectly tending to explain, modify, or qualify inference resulting from facts stated in direct examination. (I. C. A., sec. 16-1205.)

6. Questions concerning whether certain coat had appearance of having been laid or placed, or having fallen, where it was found, and concerning whether certain paper appeared to have been stuffed in back of window, were improper as calling for conclusions.

7. In suit on life policy, statement of witness made on day following insured's death, immediately after having found insured lying on a bed in a cabin, that insured had killed himself, was not admissible as part of res gestae.

8. The admission of evidence as part of res gestae is largely within trial court's sound discretion.

9. The remarks of trial judge to which no objection had been raised at time that they were made would not be reviewed on appeal.

10. The insurer was not entitled to directed verdict in suit on life policy on ground that insured's death certificate disclosed that cause of death was suicide by asphyxiation where record did not show that any such death certificate had been introduced.

11. Questions or matters not presented in record will not be considered on appeal.

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Gillies D. Hodge, Judge.

Action on policy of insurance. Judgment for respondent. Affirmed.

Affirmed. Costs awarded to respondent.

A. H. Oversmith and Edward E. Poulton, for Appellant.

The intentional and deliberate attempt of counsel for plaintiff to inject extraneous matter into the case in order to prejudice the jury would require the court to declare a mistrial. (Crossler v. Safeway Stores, Inc., 51 Idaho 413, 6 P.2d 151, 80 A. L. R. 463; Goldstone v. Rustemeyer, 21 Idaho 703, 123 P. 635; Powers v. Boise City, 22 Idaho 286, 125 P. 194; Robinson v. F. W. Woolworth Co., 80 Mont. 431, 261 P. 253.)

It is a fundamental rule of law that a party to litigation may not make out his own case by cross-examination, and especially so if the subject inquired about on cross-examination has not been touched upon in the examination in chief. (Sec. 16-1205, I. C. A.; Alkus v. Davies, 86 Cal.App. 355, 260 P. 894; City of Atchison v. Rose, 43 Kan. 605, 23 P. 561.)

The remarks made by witness at the time of discovery are part of these gestae and are admissible in evidence. (Anderson v. Great Northern Ry. Co., 15 Idaho 513, 99 P. 91; Wilson v. St. Joe Boom Co., 34 Idaho 253, 200 P. 884; Lucchesi v. Reynolds, 125 Wash. 352, 216 P. 12.)

The report from the Bureau of Vital Statistics of Idaho showing that the decedent's death was caused by suicide, such certificate is prima facie evidence of the facts therein stated under section 38-222, I. C. A. Being prima facie evidence of his death, the same must be met by legal evidence on the part of the party asserting that he did not die from suicide. (37 C. J., p. 560, sec. 316; Wasey v. Traveler's Ins. Co., 126 Mich. 119, 85 N.W. 459; Harrington v. Interstate Business Men's Acc. Assn., 232 Mich. 101, 205 N.W. 116, 118; Birmingham Trust & Sav. Bank v. Acacia Mut. Life Assn., 221 Ala. 561, 130 So. 327; Felix v. Fidelity Mut. Life Ins. Co., 216 Pa. 95, 64 A. 903.

Guy W. Wolfe and J. H. Felton, for Respondent.

It is within the discretion of the trial court to determine whether or not actions or conduct of a party are of such a nature as to vitiate the trial. (35 C. J., p. 389, sec. 437; 64 C. J., p. 103, par. 109; Connors v. United States, 158 U.S. 408, 15 S.Ct. 951, 39 L.Ed. 1033.)

Sustaining an objection to an objectionable remark or question is usually sufficient to cure misconduct of counsel in the examination of jurors. (64 C. J., p. 295, sec. 311; Snyder v. Mathison, 196 Mich. 378, 163 N.W. 104.)

Our statute with reference to cross-examination is as follows:

16-1205. "The opposite party may cross-examine the witness as to any facts stated in his direct examination or connected therewith, and in so doing may put leading questions; but if he examine him as to other matters such examination is to be subject to the same rules as a direct examination."

Under that section our court has ruled that a wide range of cross-examination is permissible, and witnesses may be examined not only as to facts elicited on direct examination but as to others connected directly or indirectly therewith. (Trull v. Modern Woodmen of America, 12 Idaho 318, 85 P. 1081, 10 Ann. Cas. 53. See, also, Creek v. State, 16 Okla. Cr. 492, 184 P. 917; Speer v. Smith, 83 Ore. 571, 163 P. 976; Henry v. State, 196 Ind. 14, 146 N.E. 822; Repanich v. Columbia & Northern Fishing & Packing Co., 135 Wash. 429, 237 P. 1012; Third Decennial Digest, Key No. 269, et seq.)

The scope of cross-examination is largely in the discretion of the trial court. (Barton v. Dyer, 38 Idaho 1, 220 P. 488.)

BUDGE, J. Morgan, C. J., and Holden and Ailshie, JJ., concur. Given, J., did not sit or participate.

OPINION

BUDGE, J.

--April 15, 1935, appellant issued a policy of insurance for $ 1,000 on the life of Harry O. Towne, payable to respondent Mabel C. Towne. The insured died on September 16, 1935, and this action was thereafter instituted by respondent to recover upon the policy. The allegations of the complaint were admitted and as a sole defense or in avoidance of liability appellant alleged that the insured on September 16, 1935, "did commit suicide and intentionally destroyed his own life" and set up the following provision of the policy of insurance:

"If within two years from the date hereof the Insured shall die by his own hand, whether sane or insane, the liability of the Company under this Policy shall be limited to the amount of reserves hereon."

The jury returned a verdict in favor of respondent in the sum of $ 1,013.15 and judgment was entered thereon and this appeal was taken from the judgment.

The first, second and sixteenth specifications of error are to the effect that the court erred in overruling appellant's motion for a mistrial because of alleged misconduct of respondent's attorney in the voir dire examination of the jury, that the error was not cured by the court's instructions and that the court erred in overruling the motion to discharge the jury because of the misconduct of respondent's attorney. The record discloses that the following took place after the voir dire examination of all jurors by counsel for the respective parties:

"(After completion of the examination of each individual juror, Mr. Felton propounded the following question:)

"Mr. FELTON: Do any of you have any objection to a poor widow bringing an action against an Insurance Company to recover under an insurance Policy?

"Mr. OVERSMITH: Now if the Court please, we move for a mistrial on the ground that Counsel has made a prejudicial statement here before the jury. (Argument omitted.)

"Mr. OVERSMITH: I don't know whether the stenographer got the question or not.

"The COURT: The question was, Counsel asked if there was any reason why they should not render a fair and impartial verdict between this poor widow and the insurance company--that is the substance of it."

The examination of the veniremen, except for this one question, is not in the record. No questions asked by counsel for appellant appear and the record is silent with respect to and fails to disclose the general trend of the examination or the line followed in the examination of the jury. It is impossible to ascertain from the record for what purpose, if any, counsel for respondent asked the question objected to or what prompted the question, if anything.

"The extent to which parties should be allowed to go in examining jurors as to their qualifications cannot well be governed by any fixed rules. The examination is conducted under the supervision and direction of the trial court, and the nature and extent of the examination and what questions may or may not be answered must necessarily be left largely to the sound discretion of the court, the exercise of which will not be interfered with unless clearly abused." (35 C. J., p. 389, sec. 437.)

See Donovan v....