86 Neb. 61 | Neb. | 1910
This is an action against a fraternal insurance company upon its certificate payable to the assured’s infant children. Plaintiffs prevailed, and defendant appeals. Upon a former submission the appeal was dismissed because of the condition of the record. 85 Neb. 477. The defect has been supplied, and the cause comes on now for decision upon the merits.
1. The defense is that the assured, in violation of the terms of said certificate while pregnant, wilfully and unlawfully caused a physician to commit an abortion upon her person. Certain conditions in the application for insurance, in the certificate and in defendant’s by-laAvs are pleaded to demonstrate that upon the facts defendant is not liable. These allegations are denied in the reply. In 1901, in the application made by the assured for admission into the order, she agreed to conform in all respects to the laws, rules and usages of the society then in force or thereafter adopted. Defendant’s by-laAvs in 1901 contained no conditions for forfeiture other than those set forth in the certificate. By paragraph five of the certificate it is provided, among other things: “If the member holding this certificate * * * shall die by such member’s own hands, Avhen sane or insane, or if death shall occur in consequence of a duel, or of any violation or at
2. Defendant has not alleged nor attempted to prove a state of facts essential to bring its defense within the provisions of section 6 of the criminal code, but by averment of alleged facts and by direct reference to section 39 of said code the defense is based upon a violation of section 39, supra, which is as follows: “Any physician or other person who shall wilfully administer to any pregnant woman any medicine, drug, substance, or thing-whatever, or shall use any instrument or other means whatever, with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have
The trial court instructed the jury, in effect, that, if the assured procured an unlawful abortion to be performed upon herself and death resulted therefrom, their verdict should be for' defendant. Instruction numbered 4 is as follows: “You am instructed by the court that for the unlawful act of the assured to work a forfeiture it is not necessary that the act should be the direct cause nor the precise consequence which actually followed could have been foreseen. It is enough if the act is unlawful in itself and the consequences flowing from it are such as might have been expected to happen, for in such case the ultimate result is traced back to the original proximate cause. Therefore, if you find that the deceased, Mary A. Metzger, had reason to know that the unlawful act of submitting to an attempted abortion endangered her life, you will find for the defendant. If you find from the evidence that the act of Mary A. Metzger in submitting to an attempted abortion was unlawful, and that death might reasonably have been expected to result therefrom, then the causative connection between the unlawful act and the death is established, and it will be your duty to find in favor of the defendant.” The jury were further instructed that, if the assured came to her death as the result of criminal or self-inflicted abortion or miscarriage, or of any violation or attempted violation of the laws of the state or territory of the United States, the certificate in suit would be null and void. Section 39 of the criminal code was set forth at length in the instructions, and the jury informed that, if the assured voluntarily submitted to a criminal operation and death resulted therefrom,'they should find for defendant. Finally, they were instructed that, if the assured died as the result of an operation performed by Dr. Conklin in his attempt to relieve her from an ailment from which she was suffering, not the result of any cause
Defendant called the assured’s surviving husband, and propounded to him many questions calling for information communicated to him by his wife. Objections to these questions were sustained. Section 332 of the code is as follows: “Neither husband nor wife can be examined in any case as to any communication made by the one to the other while married, nor shall they, after the marriage relation ceases, be permitted to reveal, in testimony, any such communication made Avhile the marriage subsisted.” By section 334 of the code the interested spouse may Avaive said privilege. We think the court committed no error in this regard. The husband’s testimony was not for the benefit of his late Avife’s estate, nor did the Avitness or plaintiffs Avaive the statutory privilege. Stanley v. Montgomery, 102 Ind. 102.
Defendant complains because the court ruled that the husband need not testify to the fact that he gave Dr. Trostler a promissory note about the time of the alleged abortion. This was not a privileged communication, but the fact was established by the doctor’s testimony. We think no error would have been committed in permitting the witness to testify concerning the purpose for which said note was given. Before asking the question, defendant had not connected that purpose with any criminal conduct on the part of Dr. Trostler or of the deceased, nor did its counsel suggest the missing link would be supplied, and, under the circumstances, we think the court acted within its discretion in sustaining these objections. The Avitness testified to the condition of his wife’s health about the time she was in Dr. Trostler’s care, and said that he did not know for certain and could not state, except from statements made by her, the purpose of the physician’s visit, nor inform the jury what the doctor did to his wife. So, whether the court ruled wisely or otherwise concerning many questions propounded to the hus
8. Dr. Conklin succeeded Dr. Trostler.as the assured’s physician, and testified for the defendant to the effect that before treating his patient he required Mr. and Mrs. Metzger to sign a written statement wherein they exonerated him from all blame because of results flowing from an attempted abortion committed by Dr. Trostler. This document the witness stated was lost, but he produced an alleged copy, which was excluded by the court. The witness, however, testified to the contents of the original paper, so the fact was before the jury.
4. Since defendant’s counsel did not offer to prove any fact after objections to certain questions on direct examination of its witnesses were sustained, we will not review errors assigned upon such rulings. Witnesses were allowed to answer relevant questions which had been held improper at other stages of the trial, and in some instances Avere refused permission to testify a second time concerning subjects discussed in ansAvers theretofore given by them, so that apparent errors argued upon an examination of the entire bill of exceptions are found not to be real. An attempt Avas made to prove that Mr. Gomer Thomas Avhile county attorney of Harlan county had control of a Avritten dying declaration made by Mrs. Metzger, but the record discloses the witness was not acquainted with the handwriting or the signature of the assured, nor Avas there any competent foundation laid to establish that said document contained the statements referred to.
5. It is insisted that the verdict is not sustained by the evidence. It will be borne in mind that, in the state of the record, it devolved upon defendant to prove that the assured came to her death as a resqlt of a violation or
6. Defendant’s showing of diligence was not sufficient to justify the court granting a new trial because of newly discovered evidence. This subject is largely within the discretion of the trial court, and ordinarily its ruling upon the point is conclusive. Grand Lodge, A. O. U. W., v. Bartes, 69 Neb. 636.
The judgment of the district court therefore is
Affirmed.