No. 1,451 | 8th Cir. | Apr 3, 1901
Lead Opinion
after stating the case as above, delivered the opinion of the court.
During the progress of the trial, and in its final charge to- the jury, the lower court ruled, in substance, that the defendant company had not averred in its answer that Sallie E. Hillmon, the sole beneficiary in the policy, was a party to the alleged conspiracy between John W. Hillmon, John H. Brown, and Levi Baldwin to defraud it and other life insurance companies; that, as her connection with the conspiracy had not been averred, it could not be claimed that she was a party thereto; that the substantive defense which was pleaded in the answer was that Hillmon was not dead, for -which reason no liability had accrued on the policy when the suit was filed; that the principal question in the case was whether John W. Hillmon died, as claimed by the plaintiff, in consequence of a gunshot wound inflicted on March 17, 1879; and that the existence of the alleged conspiracy between Hillmon, Brown, and Baldwin was only relevant to strengthen the probability that Hillmon was still living. • In various ways exceptions were reserved to these rulings, which will collectively form the first subject for consideration.
It is manifest, we think, from an inspection of the answer, that the trial court was right in holding that the defendant had not pleaded that Mrs. Hillmon was a party to the alleged conspiracy between the three persons last above named, and such seems to have been the view that was entertained at the. trial by counsel for the defendant company, for in his opening statement to the jury, after alluding to a remark which had been made by the plaintiff’s attorhey in his opening address, to the effect that the defendant had never claimed that Mrs. Hillmon was a party to any conspiracy, he said: “What evidence will be deduced on that point is for you gentlemen to determine. What we say on paper is that John W. Hillmon, Levi Baldwin, and John H. Brown did conspire to defraud these insurance companies.” This was an admission that the defendant had only charged in its answer that the three parties last named had conspired to defraud the company, and that it had not ventured to commit itself to the statement that Mrs. Hillmon had ever participated therein.
It is further manifest that the trial court was right in holding that the fact that John W. Hillmon was not dead when the action was brought, but' was concealing himself somewhere, constituted the substantial defense pleaded in that part of the answer which - is quoted above; that the issue tendered by the plea was whether he was dead or alive; and that such issue presented the principal question of fact for th,e consideration of the jury. It will not be presumed that the second plea contained in. the answer was intended to. state more than one
It is urged in behalf of the defendant, and an instruction embodying the proposition was refused by the trial judge, that if the policy in suit was taken out in pursuance of the alleged conspiracy between Hillmon, Brown, and Baldwin, and if Hillmon was afterwards accidentally killed in the manner alleged by the plaintiff, while he was engaged in hunting for the corpse of some other person on the plains of Southwestern Kansas, then there could be no recovery. One good and sufficient reason why such an instruction ought not to have been given is that no such defense was pleaded in the answer. We have already expressed the opinion that the defense made by the second plea was, in substance and legal effect, that Hillmon was not dead, and that the plea cannot be construed as containing dual defenses. Manifestly, it ought not to be construed as containing two defenses which are inconsistent, the one denying that Hillmon was killed on March 17, 1879, and averring that he was still alive; and the other admitting that he was accidentally shot, as alleged. It is not necessary to assert that the two defenses were so utterly irreconcilable that they could not have been embodied in the same answer; but it is clear, we think, that if the defendant intended to rely on the defense which it actually pleaded, and also on the one which was outlined in its instruction, they should have been pleaded separately, so as to advise the plaintiff of the precise issues which she would be compelled to meet. A pleading, however skillfully framed, will never be construed by the courts so as to mislead the unwary, but will be interpreted according to its obvious sense and meaning. This action at the time of the last trial had been pending for more than 20 years, and if the long lapse of time, and the fact that Hillmon had not been unearthed, had led the defendant company to suspect that he was in fact killed at the time and place alleged, then it should have amended its answer, if it desired to avail itself of the defense which is suggested by the refused instruction, namely, that the policy was void because it was taken out originally in pursuance of a fraudulent purpose. We cannot regard its second plea as embodying any such defense, or as having been framed by counsel with a view of presenting any such defense when the answer was filed. Aside from-this view of the case, we very much doubt, although it is unnecessary to express a definite opinion on the point, whether the fact- that the policy was solicited in pursuance of the alleged conspiracy, and with intent at some time in the future to make a fraudulent claim thereunder, would constitute a defense to the action brought by Mrs. Hillmon, who was not alleged to have been a party to the conspiracy when the policy was solicited, or to have been in any wise concerned therein. The contract of insurance was founded upon a valuable consideration. It was not an unlawful contract. Mrs. Hillmon had a well-recognized insurable interest in the insured’s life, and it is not claimed that the policy was issued in consequence of any false or fraudulent representations. Under the circumstances it is not apparent that a mere intention on the part of John W. Hillmon to make a fraudulent claim thereunder, which was never in fact made, could impair the beneficiary’s right of
This brings us to a consideration of some of tlie exceptions to the admission and exclusion of testimony. The defendant company offered to show by four witnesses, namely, Phillips, Blythe, Crew, and Carr, certain statements which had been made to (hem by Baldwin at various times between the fall of 1878 and the spring of .1879, when the policy in suit was issued. One of these offers was a statement by Baldwin to Crew that be had borrowed money from a certain bank to pay Ilillmon’s life insurance premium; another was a statement by Baldwin to Carr that “he and ILillmem had a scheme under brogue,” and, if it worked out “lie [Baldwin] was all right”; another was a conversation between Baldwin and Phillips, in which Baldwin inquired, in substance, either in jest or in earnest, if it would not be a good scheme to get insurance on one’s life in a large sum, and go south, and get the body of a greaser, and palm it off as your own body; and another was a request made by Baldwin to Blythe to recommend to him some good insurance companies, as he had a friend who wanted to take out some insurance. These several statements were excluded, and, as we think, properly excluded. Even when there is sufficient evidence in a case to warrant a finding that a conspiracy was entered into by certain of the parties to the action to do some wrongful act, it does not follow that any and every declaration which may have been made by one of the conspirators is admissible even as against his associates in the scheme. Declarations made by one conspirator are not admissible against the others to prove the existence of the conspiracy if such statements are not made in the others’ presence. Neither are mere admissions or narrations of what has already taken jdaee admissible, which have no tendency to promote the objects of the conspiracy; the rule being that declarations by individual conspirators, to be admissible against their associates, must be made in furtherance of the common design while it is under way or in process of execution, so as to form properly a part of the res gesta;. State v. Johnson, 40 Kan. 266" court="Kan." date_filed="1888-07-15" href="https://app.midpage.ai/document/state-v-johnson-7887482?utm_source=webapp" opinion_id="7887482">40 Kan. 266, 268, 19 Pac. 749; People v. McQuade, 110 N.Y. 284" court="NY" date_filed="1888-10-02" href="https://app.midpage.ai/document/people-v--mcquade-3629648?utm_source=webapp" opinion_id="3629648">110 N. Y. 284. 307, 18 N. E. 156; People v. Kief, 126 N.Y. 661" court="NY" date_filed="1891-05-05" href="https://app.midpage.ai/document/people-v--kief-3613417?utm_source=webapp" opinion_id="3613417">126 N. Y. 661, 662, 27 N. E. 56; 3 Greenl. Ev. (15th Ed.) § 94, and cases (here cited. Tested by (his rule, some1 of the statements mentioned above;, particularly those to Cre;w and Carr, were merely narrative of past transactions, and not admissible for that reason. But, for other reasons as well, the testimony was not admissible against Mrs. Hillmon, who was the sole plaintiff. It was not alleged by the elerf(aidant company that she ever became a party to the alleged combination to defraud certain insurance; companies, either by original participation in the; scheme or by subseepnmtly adopting it, and, in the absence of any such averment, we; are of opinion that it would have bee;n erroneous to have; admitted as against her such casual declarations and inquiries of the man Baldwin as are above described. Under the issues which were presented by the; ple;adings, we think that the trial court went quite far enough in permitting the existence of the alleged conspiracy between Hillmon, Brown, and Baldwin to be shown for the purpose of strengthening the probability that Hillmon was not in
Further complaint is made by the defendant because the trial court refused to permit it to show by certain oral testimony and by reading one section of the Criminal Code of the state of Texas that in the early part of the year 1878 Hillmon had committed an offense against the laws of the state of Texas by removing out of that state certain personal property which he had bought and mortgaged, with an in tent to defraud the mortgagee. The admissibility of this evidence is urged upon the ground that, if admitted, it would have disclosed a motive for Hillmon’s “disappearance and continued absence.” We ' are of opinion, however, that the evidence was unnecessary for this : purpose, as a sufficient motive was disclosed for his disappearance and continued absence; and ho further evidence in that behalf was 1 needed, if the defendant’s theory of the case was right, that Hillmon was not dead when the suit was brought, but was merely hiding, to enable his wife to collect certain insurance upon his life. The trial court did permit the defendant to show the purchase of the personal property in question, and the reasons given by Hillmon for its purchase, and the fact that it had been removed, and not paid for, and that the property was subsequently sold; this latter testimony being admitted, as we infer, upon the theory that the defendant had the right to trace all of Hillmon’s movements, and to exploit his actions for some months before the policy in suit was taken out, for the light it might possibly shed on his subsequent conduct. The introduction of the criminal statute of Texas and the other evidence was unnecessary to establish a motive for Hillmon’s disappearance, and the exclusion thereof cannot be regarded as a material error.
A further complaint is made because the trial judge said in his ' charge with reference to a written statement that had been made by John H. Brown, one of the alleged conspirators, whose deposition had . also been taken and read by the plaintiff, that said statement was “not affirmative evidence of the truth of any matter therein contained, and * * * should not be considered * * * except as affecting the credibility of the evidence of said Brown given in his deposition.” The statement of Brown which was thus mentioned and his deposition weré entirely irreconcilable as respects the question whether Hillmon was killed on March 17,1879, or whether the person killed was another man. The direction which the court gave to consider Brown’s statement as affecting the credence which should be given to his deposition was, in effect, therefore, a direction to the jury to determine on which occasion Brown had told the truth, — whether when his deposition was taken or when an ex parte statement was obtained from him by a lawyer by the name of Buchan, who seems to have been in the employ of the defendant company, or at least to have been actng in its behalf and in its interest. We are relieved, however, of the necessity of deciding whether there was anything misleading in the excerpt from the. charge which has been quoted above, by the fact
In behalf of the defendant company an instruction was asked, which was refused, to the effect that Brown’s sworn statement, which was, in conflict with his deposition, might “be considered, in connection with the deposition, * * * as evidence of the facts therein stated, * with like effect as the deposition of John H. Brown,' and may also be considered as affecting the credibility of said Brown.” We think that this instruction was faulty, and fully as liable to mis-, lead as the court’s charge on the subject, inasmuch as it required the jury to attach as much weight to the one document as to the other,’ irrespective of the circumstances under which the two documents had been obtained. There was evidence in the case which tended to show that the ex parte statement had been obtained from Brown on September 4, 1879, by much persuasion and by covert threats; and by some unprofessional conduct on the part of the attorney who had obtained it; and that it had been used to induce the plaintiff to release her cause of action upon the policy in suit without consideration. On the other hand, Brown’s deposition had been taken at a later date, in the usual way, and he had been cross-examined by the defendant company at great length. In his deposition he admitted having made the statement, and asserted that the statements therein contained to the effect that Hillmon was not dead, and that another man had been killed, were each false. He also explained the reasons and the influences which had been brought to bear upon him to induce him to make the false statement. It was the province of the jury to decide, in view of all the circumstances tending to show how the ex parte statement had been obtained, and the use that had been made of the same, and in view of the fact that it had been introduced into the case by the plaintiff, not as credible testimony, but merely for the purpose of discrediting it, whether they would treat it “with like effect,” or consider it as entitled to the same credence as Brown’s deposition. If the court had given the defendant’s instruction, it might well be said, we think, that it had invaded the province of the jury. ,
Complaint is made in behalf of the defendant company because the trial court did not give an instruction to the effect that proof had been offered, which had not been disputed, that the corpse brought back from Medicine Lodge to Lawrence, Kan., had a perfect set of teeth, and that the jury should return a verdict for the defendant if they found from a preponderance of evidence that Hillmon in his lifetime had lost a tooth, or had imperfect teeth. This instruction was in the nature of a commentary on one feature of the evidence, which the court, in our judgment, was not required to make, inasmuch as it appears that there was considerable conflict in the evidence as to the kind of teeth which Hillmon had. Some persons, as it would seem from the testimony, might regard him as having good teeth, and some as having teeth that were imperfect. Besides, this instruction singled out one fact bearing upon the question whether the corpse that
Another contention on the part of the defendant company is that the trial court erred in permitting the plaintiff to have six peremptory challenges when the jury was impaneled. With reference to this point it is to be observed that at the time of the last trial there were two actions pending in behalf of the plaintiff upon policies of insurance on the life of her husband, one against the present defendant and the other against the Mutual Life Insurance Company of New York, both of which actions involved the same issue as to whether her husband was dead or alive. Originally, there had been three such actions, one against the New York Life Insurance Company, but the latter action had been compromised prior to the last trial. The trial judge ruled that, if the two actions which remained to be tried had not already been consolidated for trial-under existing orders, he would order their -consolidation, as the issue in each case was the same, and the trial thereof would be exceedingly lengthy. It goes without saying that such order of consolidation was within the discretionary power of the trial judge, and we have no doubt that in the present instance the power was wisely exercised. At all events, it affords no ground for a successful'complaint on writ of error. Insurance Co. v. Hillmon, 145 U.S. 285" court="SCOTUS" date_filed="1892-05-16" href="https://app.midpage.ai/document/mutual-life-insurance-v-hillmon-93380?utm_source=webapp" opinion_id="93380">145 U. S. 285, 293, 12 Sup. Ct. 909, 36 L. Ed. 706" court="SCOTUS" date_filed="1892-05-16" href="https://app.midpage.ai/document/mutual-life-insurance-v-hillmon-93380?utm_source=webapp" opinion_id="93380">36 L. Ed. 706. It is urged, however, by learned counsel for the defendant, that, as the two actions were consolidated for trial, the plaintiff was only entitled to three peremptory challenges. It is to be observed that when this case was before the supreme court, and was under consideration in the case last cited (145 U.S. 285" court="SCOTUS" date_filed="1892-05-16" href="https://app.midpage.ai/document/mutual-life-insurance-v-hillmon-93380?utm_source=webapp" opinion_id="93380">145 U. S. 285, 12 Sup. Ct. 909, 36 L. Ed. 706" court="SCOTUS" date_filed="1892-05-16" href="https://app.midpage.ai/document/mutual-life-insurance-v-hillmon-93380?utm_source=webapp" opinion_id="93380">36 L. Ed. 706), that court held that, when actions are consolidated, such an order does not operate to deprive either defendant of the right to challenge as many jurors peremptorily as he would have been entitled to challengé if the cases had been tried separately; and the former judgment in favor of the plaintiff was reversed because each defendant to the consolidated cause was not allowed three peremptory challenges. If this rule is applied to the defendants,—that is to say, if consolidated causes are treated separately, so far as the defendants are concerned, for the purpose of preserving to them their respective rights of challenge,-we perceive no reason why the same rule should not be applied to the plaintiff so as to entitle her to the same number of challenges which she would have been entitled to had the cases been tried separately. The learned judge of the trial court acted in accordance with this view, and in so doing we think that he committed no error.. It certainly does not appear that the defendant company was prejudiced by permitting the plaintiff to have six peremptory challenges, and the defendants three challenges each, or six in all.
There are some other assignments of error which have been dis
Dissenting Opinion
(dissenting). Within six months after the alleged death of Hillmon, John H. Brown, “who was with Hillmon wlnm the person, whoever he was, whose body was claimed to be that of Hillmon, was killed, made an affidavit that this body was not Hillmon's; that it was the corpse of another man, whom Hillmon had killed; that Hillmon was still living; and that this cadaver was produced to enable the plaintiff below lo collect the $25,000 insurance on Hillmon's life pursuant to a conspiracy which Baldwin, Hillmon, and Brown had formed to accomplish that end. On the trial of this action the plaintiff offered tills affidavit in evidence, and it was received without objection. l8he also offered in evidence Brown’s deposition, taken at a later date than the affidavit, in which he testified that Hillmon was dead, and that it was his corpse, and not that of another person, which was produced by him and Baldwin in March, 1879. At the close of the trial, counsel for the defendant requested the court to charge the jury that Brown’s affidavit might “be considered, in connection with the deposition of John H. Brown, as evidence of the facts therein stated under oath, against the plaintiff, with like effect as the deposition of John H. Brown; and may also he considered as affecting the credibility of said Brown as a witness.” To this request the court responded in its charge in these words: “The oral declarations of said Brown not under oath, and the statement signed and sworn to by him, are not affirmative evidence of the truth of any matter therein contained or meniioned, and they should not be considered by you except as affecting the credibility of the evidence of the said Brown in his deposition,” and refused to grant the request. The defendant excepted to the refusal, but did not except to the charge. A perusal of this brief statement of the record upon this subject will not, it seems to me, raise a doubt in the mind of any reader that the question presented by the request, that ruled by the charge, and that decided by the refusal to grant the request was the single question whether or not: the affidavit of Brown was any evidence of the facts it recited. This, it seems to me, was the only question intended to be raised by the request, was the question which the charge clearly show's that "the court understood was presented, and was the only question ruled either by the refusal of the request or by the terms of the charge upon this subject. If this view is correct, the exception to the refusal to grant the request fairly presents the ruling upon this issue. The argument that the question whether or not the affidavit wras evidence of the facts it recited was not presented because the re
When we turn to a consideration of the correctness of the ruling itself, no issue is presented for argument or consideration. Forms .and rules are prescribed by statutes and decisions for the taking and .production of testimony which give to the opposing party the opportunity and right of cross-examination and the security of an oath. .But this opportunity, this right, and this security may be waived by stipulation for, consent to, or silent acquiescence in the introduction of testimony, and when this is done the statement admitted becomes -as competent evidence of the facts it details, as though every formality had been complied with. Much more does the offer and introduction of such evidence have this effect, for he who introduces testimony is ordinarily in some sense sponsor for its character. The plaintiff introduced this affidavit in evidence, and the defendant consented to its ;admission. The plaintiff was thereby estopped from claiming that it was not evidence of the facts it recited, because the defendant relied, and had the right to rely, upon it for that purpose, and because the plaintiff, having introduced it, was not permitted to take the inconsistent position that it was not competent evidence of the facts it related. Walton v. Railroad Co., 56 F. 1006" court="8th Cir." date_filed="1893-07-10" href="https://app.midpage.ai/document/walton-v-chicago-st-p-m--o-ry-co-8847264?utm_source=webapp" opinion_id="8847264">56 Fed. 1006, 1008, 6 C. C. A. 223, 225,12 U. S. App. 511, 513; National Loan & Investment Co. v. Rock-land Co., 94- Fed. 335, 337, 36 C. ,C. A. 370, 372. The affidavit was persuasive telling evidence upon the crucial questions in the case, upon the identity of, the corpse, and upon the conspiracy to defraud the defendant, and yet the company was deprived of its benefit by this .ruling of the court: This error is so plain and glaring, and it necessarily deprived the defendant of such important testimony, that, in jny opinion,, it ought not to be disregarded.