255 P.2d 489 | Okla. | 1953
By this action, Dolly Jones, plaintiff, sought to recover from The Home Insurance Company of New York, a corporation, defendant, for the total loss by fire, of an automobile, allegedly covered by the terms of a policy of fire insurance. The parties will be referred to as they appeared in the trial court.
Plaintiff purchased the automobile here involved, a 1947- Frazer Manhattan, in December, 1947, insuring the same with defendant, against loss by fire. It was totally destroyed by fire on May 5, 1948, while being driven by her husband, Leroy Jones, in the State of Texas. Plaintiff alleged in her petition, as amended, thát any possession of the car by the said Leroy Jones was without her knowledge or consent and that she did not know the mission or business of the said Leroy Jones at the time the car was burned.
The defendant, by answer, denied generally the allegations in the petition and specifically alleged that, at the time of loss and in violation of the terms of the insurance policy the vehicle was being used in an illicit trade and transportation, which relieved the defendant from liability thereunder. A trial of the case to a jury, resulted in a verdict and judgment for defendant, from which plaintiff has perfected this appeal.
Two questions are presented for determination; namely, the sufficiency of the evidence to support the verdict and judgment, and the competency of the documents by which defendant sought to prove that Leroy Jones was illegally transporting intoxicating liquor at the time of the burning of the automobile. These will be discussed inversely to the order in which they are presented.
Over the objection and exception of plaintiff, the trial court permitted defendant to introduce in evidence a copy of the information, filed in the Texas Court, charging Leroy Jones with the unlawful transportation of whiskey in a dry county, also a copy of the judgment and sentence, entered upon said Leroy Jones’ plea of guilty. The objection to the documents was not as to their authenticity but that they could not be introduced in evidence in the absence of a pleading setting out the Texas statute which was allegedly violated. In support of the argument, the cases of Hinds v. Atlas Acceptance Corp., 178 Okl. 474, 63 P.2d 29; State v. Wright, 193 Okl. 383, 143 P.2d 801, are cited and quoted.
As to the sufficiency of the evidence, it must be borne in mind that this case was tried to a jury and that the judgment is based upon the verdict. We are thus limited in review by the universally adopted rule that,
“If there is any testimony reasonably tending to support the verdict of the jury, and said verdict has been approved by the trial court, the judgment will not be disturbed on appeal.”
This rule quoted from the case of Newsom v. Medis, 205 Okl. 574, 239 P.2d 784, is only a restatement from numerous earlier decisions.
Plaintiff testified that the said Leroy Jones took the automobile without her knowledge or consent and that she immediately notified, the officers of the occurrence. Her testimony as a whole was very unsatisfactory, being filled with evidences of an exceptionally convenient memory (or lack of it). The record contains the testimony of other witnesses to the effect that plaintiff and Leroy Jones had been married some 27 years; that they had several cars in addition to the one here involved; that the said Leroy Jones was seen driving this car on numerous occasions, but they had never seen plaintiff driving it. Measured by the above-quoted rule the, verdict of the jury is binding on this court.
The judgment is affirmed.
