Travelers' Ins. Co. v. Sheppard

Decision Date03 October 1890
PartiesTRAVELERS' INS. CO. v. SHEPPARD.
CourtGeorgia Supreme Court

Syllabus by the Court.

1. In an action upon a policy of insurance, a copy of the policy being annexed to the declaration, and the declaration being otherwise sufficient under the Code, the policy is admissible in evidence at the trial, without the application on which it was founded, notwithstanding the policy refers to the application, and makes it a part thereof, and notwithstanding the application sets forth matters not written in the policy but expressly declared therein to be warranties.

2. Where the policy stipulates for preliminary proof of loss and the declaration alleges that such proof was furnished and where the whole declaration is denied by plea, the plaintiff is entitled to verify the allegation by submitting in evidence the affidavits which were furnished to the company as preliminary proof. But the affidavits are evidence for the sole purpose of showing compliance with the terms of the policy as to preliminary proof, and the better opinion is that their sufficiency is for the court. They are no evidence against the company of any fact stated in their contents.

3. Though the policy stipulates that the preliminary proof of death, etc., to be furnished, shall be "direct and affirmative proof," any proof that ought to be satisfactory will suffice, although it may involve inference of the main fact from other facts, and therefore be properly denominated "circumstantial," rather than "direct," evidence.

4. The good or bad faith of an insurance company in refusing to pay after demand is to be determined by the evidence adduced at the trial upon the merits of the controversy, and not by ex parte affidavits produced to the company as preliminary proof, or for the company's information to induce voluntary payment. Probable cause for refusing payment will negative the imputation of bad faith, and without such probable cause refusal will be at the company's peril. Ex parte affidavits are not admissible to illustrate the question of good or bad fath.

5. In an action by a woman upon a policy of insurance on the life of her husband, her character is not involved, and evidence of her good character is not admissible. Nor is her character as a witness in her own behalf open to supporting evidence where no impeaching evidence has been introduced by the defendant.

6. The person whose life was insured having disappeared while a hunt was in progress, in which he with two others participated what one of his comrades said to the other on the scene of the hunt, when they met a few minutes after the disappearance occurred, and also while they were on the way to search for their missing companion, was admissible in evidence as part of the res gestæ, to explain their conduct in abandoning the hunt, engaging in the search, and conducting it in a particular manner; these acts of theirs being relevant evidence in a suit upon the policy, and the declarations being of a nature to account for and illustrate the acts with which they were connected, and being apparently instinctive and spontaneous utterances, free from any reasonable suspicion of device or afterthought. Though not precisely contemporaneous with the main fact of the disappearance, they were made while the transaction of which that main fact constituted a part was incomplete, and while the stream of action which began with the hunt and terminated with the search was unbroken.

7. An exclamatory affirmation, such as "Sheppard has killed himself!" though a part of the res gestæ, is not evidence of the matter of fact which it affirms, where all the circumstances show that it was the expression of a mere opinion. Its function as evidence should be confined to illustrating such relevant conduct of the speaker as it tends to explain, and such relevant conduct of the hearer as it prompted or influenced. A declaration importing that the speaker thought he caught a glimpse of a man falling from a boat into the river deals with matter of fact, not with matter of opinion. It relates to an indistinct perception of the senses, not to a mere inference or conclusion of the mind.

8. The manner and appearance of a speaker whose acts and utterances belong to the res gestæ are relevant evidence; and that he looked wild, and seemed excited, is matter of fact, not of opinion, for which reasons ought to be specified. The signs of emotion may be described by the use of general terms, without any enumeration of particulars.

9. The res gestæ of the disappearance involved in this case terminated with the conclusion of the search, and subsequent excitement, conversations, etc., of the persons connected with the transaction, and upon a different scene, were irrelevant and inadmissible.

10. The action being by a wife upon a policy of insurance in her favor upon the life of her husband, the insurance being against death by accident within one year from the date of the policy, and he having disappeared within the year, that his family regarded him as dead, or recognized him as being dead, is not competent evidence in behalf of the plaintiff.

11. The grief and sickness of the plaintiff consequent upon hearing of her husband's death, and that by reason of destitution she had to sell clothing to supply wants, are not relevant, and therefore not admissible evidence in her behalf.

12. That plaintiff and her husband were attached to each other, and lived together on affectionate terms up to the time of his disappearance, is relevant and admissible, as tending to throw some light, in connection with other evidence, on the nature and cause of his long-continued absence.

13. That a sister of plaintiff, who resides with her, never saw any letter or communication in a mysterious manner which would lead her to suppose that plaintiff was in communication with her husband, or that she (the sister) has nothing to lead her to believe he is still alive, is irrelevant and inadmissible.

14. The opinion of a witness as to the difficulty of recovering the body of a man if he fell into the river at a certain place is admissible, his reasons for the opinion appearing from the testimony taken as a whole, and the place being identified as the point at or near which the person in question disappeared.

15. Testimony as to the character of the river, etc., at a particular point shown to the witness, is not admissible, without some evidence tending to identify that point with the one at which the disappearance occurred.

16. A man who, as pilot and mate, is well acquainted with a river, is competent to give his opinion as to whether one faling into it would likely be found after death, and among the reasons for his opinion the witness may cite an instance of a person who fell overboard many years ago, and, though searched for, was never found.

17. One who has navigated the river by steamboat for about five years may express his opinion in connection with a description of the stream and a statement of facts showing his acquaintance with the characteristics of the river and the adjacent swamps.

18. Witnesses acquainted with the plaintiff's husband having testified in behalf of the company that they saw him alive in Alabama after his disappearance, and others, not acquainted with him, that they too saw a man in Alabama, of whom an authentic photograph of the plaintiff's husband exhibited at the trial appeared to be a likeness, such evidence cannot be rebutted by the testimony of a witness on the part of the plaintiff that he knew her husband, and saw a man in Georgia whom he at first thought was him, but changed his opinion, upon being informed that the man was or had been a citizen of the town at which the witness met with him. This testimony is irrelevant and inadmissible.

19. That witnesses said before they testified, on first seeing the photograph above referred to, some of them that it was the picture of one man, and some that it was the picture of another, is not relevant or admissible to rebut the testimony of the company's witnesses, who deposed that it was a likeness of the man seen by them in Alabama.

20. The brother of plaintiff's husband being a witness in her behalf, it was competent for him to testify to the reason which induced him to transfer to plaintiff's child a policy which he, the witness, held on the life of his brother, the child's father, although to state such reason involved the father's sayings as to his wishes or intention in behalf of his child.

21. The fact that plaintiff failed to answer a letter written to her by an agent of the insurance company being in evidence, it was competent for her to explain why she did not answer it, though a part of the explanation was that her counsel advised her not to answer.

22. Where the policy sued on arises out of business transacted within this state, whether the contract of insurance be concluded here or elsewhere, the statute (Code, § 2850) touching the allowance of counsel fees on account of bad faith in withholding payment after demand applies; but the evidence of what amount would be reasonable should be confined to a certain fee, and inquiry should not extend to a conditional fee, there being no evidence of any contract for a conditional fee in the particular case. Nor can any estimate be made to cover future litigation by motion for a new trial, writ of error, etc., there being no certainty that such future litigation will occur. If witnesses estimate fees on a basis which is too comprehensive, or on a misconception as to what the nature of the case involves, they should be requested, on cross-examination, to eliminate the superfluous elements, and correct their estimates accordingly.

23. Interrogatories which assume a material fact in...

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208 cases
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