101 Ark. 513 | Ark. | 1912
(after stating the facts). 1. It was made . ground of the motion for a new trial that the court overruled a motion for a continuance filed by the defendants.
In the motion, counsel for defendants says that he could prove by Miss Pritchard, in person or by deposition, that Samuel F." Ford assaulted her with a large chair, and that she shot him in self-defense. That the defendant has used its best efforts to reach in person the said Carrie Pritchard that it might take her deposition, but has never been able to communicate with her. That it can locate her and take her deposition.
Counsel for the defendants, in his motion for a continuance, also states that the plaintiff failed to file either the original policy or a copy of it with her complaint, and for that reason he could not prepare a defense to the action.
The court did not abuse its discretion in overruling the defendant’s motion for a continuance. Section 6173 of Kirby’s Digest relating to motions for a continuance provides that the affidavit must show what facts the affiant believes the witness will prove, and not merely the effect of such facts in evidence, and that the affiant himself believes them to be true. If it can be said that the affiant has complied with the first of these requisites, it certainly can not be said that he had complied with the latter. Indeed, counsel’s motion shows that he could not state on oath that he believed the statements attributed to the absent witness to be true; for he states in it that the defendant has unsuccessfully attempted to communicate with the witness, and therefore the defendants could not know from her what she would testify. Counsel does not claim that any one else has stated to him or to any of the defendant’s agents that she would testify as stated in the motion for a continuance.
This suit was filed on October 12,1910. The circuit court, convened on January 16,1911, and the case was tried on January 28,1911. The deposition of J. F. Ball was taken at Pollock, La., on January 7, 1911, and the record shows that defendant’s attorney was present. Pollock is alleged to be the residence of Miss Pritchard, and the record is silent as to whether she still resides there. If she does, it is obvious that the defendants were negligent in not procuring her deposition. If she is absent temporarily, defendants could have ascertained from friends and acquaintances her whereabouts and have procured her deposition. If she left Pollock without stating to any one where she was going or when she would return, defendants have failed to show that there is any probability of finding her. It is true the counsel for the defendants states in his motion that he was only employed in the case one week before the court convened, but this is no excuse for the defendants. Service of summons was had upon them in the manner required by law in ample time for them to have employed counsel sooner, and they have no right to a continuance because they failed to do so. In short, there was nothing in the motion for a continuance from which the court could have been advised that there was any likelihood that the attendance of Miss Pritchard as a witness could have been procured, or that her deposition could have been taken had a continuance been granted until the next term of the court.
Again, counsel says he could not prepare a defense because the plaintiff did not file the original policy or a copy of it with her complaint, but he does not state that the defendant Life Insurance Company did not have a copy of the policy. It will be noted that it is not alleged that any changes or alterations were made in the policy after it was delivered to the assured.
Plaintiff was not required to take her proof by depositions. She might have waited until the trial and produced her witnesses ■in court. Hence defendants can not be allowed a continuance because she saw fit to take depositions at any time, however short, before the court convened. Counsel does not claim that the defendant was taken by surprise by the evidence of J. F. Ball, whose deposition was taken.
2. It is next contended by counsel for defendants that the court erred in not submitting to the jury the question as to whether the death of the assured was effected through external, violent and accidental means within the meaning of the policy. We can not agree with counsel in that contention. It is true there was a quarrel between Ford and Miss Pritchard, and that he arose from his chair and grabbed it as if to strike her; but • when his employer asked him to stop, he did so, and thereafter made no attempt whatever to strike or in any way molest her. There was no such relation between his acts and his death that the former can be said to have caused the latter. Ford did not know at the time and had no reason to believe that his slayer was armed with, and would use, a deadly weapon. He was making no hostile demonstration whatever towards his slayer at the time he was shot, and the act of Miss Pritchard in shooting him was the proximate cause of his death. In the case of Supreme Lodge of Knights of Pythias v. Bradley, 73 Ark. 274, we held that where an insured begins a personal difficulty by an assault with a weapon capable of inflicting great bodily harm or death, and is killed afterwards while retreating from the difficulty in good faith and not for the purpose of gaining a vantage ground to renew it, his death is not the proximate result of his original unlawful act, and consequently is not within a clause in a policy of insurance limiting the liability of the insurer in case the insured meets his death in consequence of his violation or attempted violation of any criminal law. There was no conflict in the evidence in regard to the cause of the insured’s death. Ball was the only witness, and from his testimony reasonable minds could not come to different conclusions. The taking of the life of the insured was a result which no reasonable man could have contemplated as likely to follow from Ford’s previous quarrel with his slayer, and there was no question of fact to submit to the jury on this point.
3. Before the case was called for trial, counsel for defendants moved to dismiss the action: (1) because there was a misjoinder of parties; (2) because the bond was only liable to policy holders of Arkansas, and the insured was a resident of Louisiana.
In regard to the first ground, it may be said that this court has decided that the sureties on the bond required of an insurance company may be joined as defendants in an action against an insurance company to recover on a policy issued by it. Queen of Ark. Ins. Co. v. Taylor, 100 Ark. 9; American Ins. Co. v. Haynie, 91 Ark. 43; Crawford v. Ozark Ins. Co., 97 Ark. 549.
The bond is conditioned to pay all claims arising or accruing to any person by virtue of any policy issued by the Insurance Company upon the life or person of any citizen of the State of Arkansas. The insured in his application for insurance stated that he was a resident of Pollock, Louisiana, and the policy of insurance recites that he was of Pollock, Louisiana; but it by no means follows that this was conclusive evidence of his citizenship, if it be conceded that the word “citizen” as used in the bond means th e same as the word “resident.” Notwithstanding the language of the policy and of the application, the question of citizenship was one to be determined by the evidence adduced at the trial of the case, and the court was right in overruling the defendant’s motion to dismiss on that ground.
On the trial of the case, the plaintiff testified that she resided in Searcy, Arkansas, that her son was unmarried and claimed her home as his home, and was only residing in Louisiana while he was working there, and that he still regarded Searcy, Arkansas, as his home during the whole time that he stayed in Louisiana.
It may be said that in its instructions to the jury the court did not submit the question of the insured’s citizenship. Obviously, as far as the Insurance Company is concerned, there was no error in this; for it was liable on its contract of insurance, regardless of the fact of whether the insured was a citizen of the State of Arkansas or of Louisiana.
In regard to the surety, it will be deemed to have waived this defense. It was not made an issue in the case except by the motion to dismiss. When that motion was overruled, the question of the citizenship of the insured was not thereafter treated by the defendant Surety Company as an issue of fact in the case.' If it desired that question to be submitted to the jury or to be treated as a disputed issue of fact, it should have called the court’s attention to it by asking instructions in regard to it or by specific objections to the instructions given by the court.
The judgment will be affirmed.