169 A. 100 | Pa. | 1933
Argued October 3, 1933. This is an action on a policy of life insurance to recover the double indemnity agreed to be paid by defendant if the death of the insured resulted from bodily injuries through external, violent and accidental means. The trial resulted in a verdict and judgment for defendant. Plaintiff, widow of the insured and beneficiary under the policy, appeals.
The policy was for $4,000 and the primary amount due on it has been paid. The defense interposed at the trial was, generally speaking, that the death of the insured was not accidental. Defendant endeavored to show from circumstances that he committed suicide and by insinuation that his wife had killed him. There is no evidence in the record before us to sustain a finding of either suicide or homicide. The testimony strongly indicates that he accidentally shot himself while handling a revolver.
The defendant sought to reflect upon the moral character of the plaintiff. G. B. McDonald, a witness called by her, was asked on cross-examination whether from the knowledge he had of plaintiff's conduct he had advised or cautioned his wife against going to the home of plaintiff or associating with her. The court permitted the question to be answered and noted an exception for the plaintiff. The witness replied, "I objected to it." The testimony was manifestly improperly received. What the witness said to his wife could in no way be used against plaintiff. To permit such a question to be asked and answered could have no other effect than to adversely prejudice plaintiff's case. The fifth assignment of error is sustained.
On the question of felonious homicide there is no testimony except that plaintiff's counsel, in cross-examination of one Cupps, attempted to get him to admit that he *432 had accused plaintiff of killing her husband. This the witness denied. In rebuttal plaintiff called two witnesses who testified they heard him make such accusation. This was clearly for the purpose of attacking his credibility. There is no other evidence in the case to support the suggestion of homicide.
With the record in this state the trial judge read to the jury, with his affirmance, the following point: "If from all the evidence the jury believes the plaintiff killed her husband, then she cannot profit by her own wrong and is by such wrongful act barred from recovery in this case." No exception was taken to the reading or affirmance of this point. We think, however, that the error of the court in reading and affirming it was so basic and fundamental (Schmitt v. Philadelphia,
The judgment of the court below in favor of the defendant is reversed and a new trial awarded.