Mobile Life Ins. v. Walker, 58 Ala. 290

Mobile Life Ins. v. Walker

58 Ala. 290 | Ala. | 1877

BB.ICKELL, O. J.

1. The first question presented by the bill of exceptions, relates to the admissibility, as evidence, of the deposition of O’Neal, taken at the instance of the ap-pellee, on the ground that the witness resided without the State. The appellee subsequently procured the personal attendance of the witness, and he was in court when the trial was commenced, and was in the city of Mobile at the time it was proposed to read the deposition. The cause of his absence from the court at that particular time was unexplained, nor was it shown to have been without the consent of the ap-pellee. All depositions are taken de bene esse, or rather provisionally, and if the cause for taking the deposition (with some exceptions provided by statute, not material to be now noticed), does not exist at the time of the trial, it cannot be used as evidence. The reason of authorizing the deposition of a witness residing without the State, to be substituted for his oral examination in the presence of the court, and of the parties is, that he is beyond the jurisdiction of the court, and without the reach of its process, and consequently the party desiring his evidence cannot compel his attendance at the trial. When, however, the witness is present in court, at the time the trial commences, subject to its jurisdiction and process, and remains at the place of holding the court, his unexplained absence at the time it is proposed to introduce his evidence, will not authorize the reading of his deposi*294tion. If it bad appeared that from sickness, or other inability not superinduced by the act' of the party taking the deposition, the witness could not attend personally, it may be the deposition should not be excluded, if his actual residence without the State continued. But, in the absence of any explanation of his absence, and of all acquittal of the party taking the deposition from connivance or consent to such absence, the deposition should be excluded. The cause for taking the deposition — the non-residence of the witness' — • may continue as a fact, but the consequence of the fact, which forms the reason for accepting the deposition in the place of a personal examination in open court, the absence of the witness from the jurisdiction of the court, and beyond the reach of its compulsory process, does not exist. The taking of depositions is in derogation of the common law, and experience has proved that it is not a mode of procuring satisfactory evidence, free from suspicion. More often than otherwise, the testimony is couched in the language of the commissioner, rather than that of the witness, and the result is, the testimony has an effect variant from that which would be produced if the witness was produced and gave expression to his knowledge in his own words. The jury are deprived of the opportunity of seeing the manner of the witness, and observing whether he testifies with reluctance for the one, and with readiness for the other party. And the party “who prepares the witness, and examines him, can generally have so much or so little of the truth, or such a version of it as will suit his ease.” It is only in obedience to statutes that such evidence is admissible, and the spirit and reason of the statutes would be contravened by accepting the deposition of a witness within the jurisdiction, and the verge of the court, when the trial commences, and who, without cause or reason, absents himself just at the moment it is proposed to introduce his evidence.

2. The cause of the death of the assured seems to have been matter of controversy, and there was evidence having some tendency to show that he had been using morphine, and from which an argument could have been addressed to the jury, that his death was voluntary, from its unnecessary and excessive use. The appellee was permitted, against the objection of the appellant, to examine the physician attending the assured in his last illness, as to his opinion, as to the disease with which he was afflicted, and the cause of his death. To the general rule, that a witness must testify to facts, and not to inferences or conclusions from facts, or to mere matters of opinion, an exception as old as the rule is recognized in favor of experts having peculiar knowledge or *295skill, in reference to the subject matter of the inquiry. — • Washington v. Cole, 6 Ala. 212; Tullis v. Kidd, 12 Ala. 648; Bennett v. Fail, 26 Ala. 605; City Council v. Gilmer, 33 Ala. 116. The most frequent illustration of the exception, is that of a physician or surgeon. The opinions of these, “as to the cause of disease, or of death, or the consequence of wounds, and as to the sane or insane state of a person’s mind, as collected from a number of circumstances, and as to other subjects of professional skill,” it is of constant practice to receive, and it forms generally the most satisfactory evidence. 1 Green. Ev. § 440. In actions on life insurance policies, such opinions are received when the question is, whether there was a bodily infirmity not disclosed, or the question is as to the cause of death. — Bliss on Life Ins. §392, p. 606; Miller v. Mut. Benefit Life Ins. Co. 31 Iowa, 216.

3. There seems to have been evidence tending to show that the assured was afflicted with lead poison. He was not required to disclose specially, whether he had been, or was so afflicted, at the time of the insurance. The appellant proposed to inquire of its own physician, who had, on the certificate of the examining physician, and the answers of the assured to the interrogatories propounded to him, recommended the issue of the policy, whether he would have given the recommendation if he had known the assured had ever been afflicted by lead poison. We cannot regard the evidence as admissible. It did not involve any question of skill or science, but, in effect, required the witness to answer, after the risk had proved unfortunate, or hazardous, what he would have done if facts had been known to him on which he had not been required to act. The inquiry, as propounded, assumed, also, the existence of a fact, which the evidence merely tended to prove. — Rawls v. Am. Mutual Ins. Co. 27 N. Y. 382.

4. The term residence, as employed in the questions propounded to the assured, was intended to signify the place of permanent, rather than mere temporary abode ; in the sense of domicile, rather than of mere inhabitancy. It is undisputed that the domicile of the assured was truly stated, and that his sojourn in Kentucky was merely temporary. Tha. domicile, and the place of temporary residence, are each within the territorial limits, in which, according to the stipulations of the policy, the assured had the right to visit or reside. The policy and the application must be construed together. Residence, as employed in the one, must have the same signification it bears in the other, there being no indication of an intention to employ them in a differing signification, The word visit is manifestly employed in the policy *296in contradistinction to tbe word reside. Tbe one conferring tbe right to travel and sojourn, and tbe other tbe right to acquire domicile by residence with tbe intention of remaining. Tbe court did not err in tbe instruction given, or in refusing that requested on this point.

For the error in admitting the deposition of O’Neal, tbe judgment must be reversed, and tbe cause remanded.