50 So. 958 | Ala. | 1909
This was an action in code form on a relief fund certificate or. life insurance policy, issued in favor of appellee’s intestate on the life of Alexander Price Baker, on September 14, 1905, by appellant, i secret benevolent society, a corporation. Upon the trial of the case issue was joined upon five special amended pleas of confession and avoidance filed by defendant.
1. There was no error in the ruling of the court in sustaining plaintiff’s objection to the following question propounded to the witness Mims B. Baker by defendant’s counsel on cross-examination, upon the ground that it called for irrelevant and immaterial testimony, viz.: “Do you know whether Fisher shot another party at the time, or any other person?” The defendant did not state what he expected to prove in asking said question, so as to show its relevancy or materiality, and we are unable to see what answer could have been made that would have been relevant or material to any issue in this case.
2. The court properly ruled in overruling defendant’s motion to exclude the policy of insurance upon the ground that the whole contract had not been offer
3. The court properly ruled in sustaining plaintiff's objection to the question propounded to witness George J. Santa Cruz to wit: “Do you know why Price Baker quit there?” as it is not clear that the answer called for would be relevant to any issue in the case, and defendant failed to state what answer he expected said question to elicit, and, furthermore, the transcript of the bill of exceptions shows that the question was answered as follows: “I cannot now recall whether Price Baker quit the railroad or whether he was discharged • — -my best recollection is that his services were unsatisfactory.” The latter part of the answer was objected to by plaintiff, viz., “My best recollection is that his services were unsatisfactory,” and the same was excluded from the jury, and properly so, as it had no bearing upon any issue in.the case. The action of the court in excluding that part of the testimony is assigned as error in the fourth assignment.
4. The fifth assignment of error was the overruling of defendant’s objection to the question propounded by plaintiff to the witness Dr. Y. P. Gaines on cross-examination viz.,: “What was his general appearance— that of a man in good health?” The plaintiff explained, after question was objected to, that he expected to show that the applicant gave no indication of being an habitual drunkard. The question was not answered by the witness, and was then asked as follows: “What was the general appearance of Baker?” (It was admitted that the witness was a medical expert.) • “A. It was very good. Q. Was there, or not, any indication of the habitual use of alcoholic stimulants?” It is a well-known fact that the habitual use of alcoholic
5. The eighth assignment of error is to the ruling of the court in sustaining plaintiff’s objection to the question propounded by defendant to witness J. E. Zeigler, viz.: “Did you know or see him drunk just a short time before he was killed?” The transcript of the bill of exceptions shows that this question was answered in full, and the answer was not ruled out, and defendant got the full benefit of it. Defendant, therefore, received no injury from the ruling of the court.
6. The ninth assignment of error is to the court’s ruling in sustaining plaintiff’s objection to the following question propounded to the witness J. E. Zeigler ■ by defendant, viz..: “Did you ever hear of his being a railroad clerk?” This clearly called for hearsay evidence, and the objection was properly sustained.
7. - The tenth assignment is to the ruling of the court in excluding the following part of an answer of the witness J. E. Zeigler to. a question propounded by defendant, viz.: “I know one thing: He was not a straight hand to gamble. What I mean is — ” This answer was in reply to the question: “Do you know whether or “not he was a professional gambler?” The answer was: “I can’t say whether he was a professional gambler or not. I know one thing: He was not a straight hand to gamble. What I mean is — ” It is evident that the part excluded Avas not responsive to the question, and
8. The-eleventh, twelfth, thirteenth, fourteenth, sixteenth, seventeenth, eighteenth, nineteenth, and twentieth assignments of error are all to the same-effect. The defendant attempted to prove one viee or moral dereliction as a- circumstance tending to show the existence of another not necessarily or vitally connected with it as cause or effect. This could not be done, and the court properly ruled thereon. — McCutchen v. Loggins, 109 Ala. 458 (6th headnote), 19 South. 810. As to the twelfth assignment, the question was leading, and was objected to on that ground. The objection was properly sustained.
9. ' The twenty-first and twenty-fifth assignments of error were to the definition of the term “occupation” in the court’s oral charge to the jury. The definition, as restated to the jury after objection was first made, was taken word for word from the Standard Dictionary, and was correct.—Mowry v. World Ins. Co., 7 Daly (N. Y.) 324; Clemens v. Metropolitan Life Ins. Co. of New York, 20 Pa. Super. Ct. 567. The defendant could not, therefore, complain of the definition.
10. The twenty-second assignment of error was to the court’s giving written charge No. 1, requested by plaintiff. This charge substantially follows defendant’s amended pleas 1, 2, and 5, the only pleas setting up a .breach of warranty on account of the use by Alexander Price Baker of alcoholic stimulants, which was equivalent to saying that, in order for the jury to find a verdict for defendant on the ground that said Baker used alcoholic stimulants, they must believe the allegations of either the first, second, or fifth pleas to Lx-1 substantially true. The court Avas without error in giving said charge.
12. The twenty-fourth assignment of error was to the court’s refusal to give written charge No. 3, asked by defendant. This charge was liable to mislead the jury, if in fact it is not an actual misstatement of the law of the case. The jury would certainly have been warranted in drawing the conclusion that, unless the insured ivas actually at work as clerk in a railroad office at the time of making application, his warranty as to occupation was breached. Such .is not the law.—Mowry v. World Ins. Co., 7 Daly (N. Y.) 324; Clemens v. Metropolitan Ins. Co. of New York, 20 Pa. Super. Ct. 567. A man who has once had and followed an occupation continues to have it until he has abandoned it, ■either by quitting work in it without intention or ability to resume it, or by engaging in some other occupation not of a mere temporary character. As to whether this has been done is usually a question for the jury, and was a question for the jury in this case.
13. The twenty-sixth assignment of error was that “the court erred in admitting in evidence the two alleged receipts showing-that proof of death was forwarded and received by defendant.” The objection to the admission of these two paper writings was that they were irrelevant and immaterial. These grounds of objection were-clearly not good, as an examination of the papers will at once show. The argument in the brief of counsel for appellant is that they should not have been admitted because that they were not proven to be genuine. There was no objection on this ground, and the court could not, therefore, consider it. The court-
14. The twenty-seventh and last assignment of error was to the court’s refusal to give the general affirmative charge requested by the defendant. The plaintiff, having proved, first, the existence of the policy sued on; second, the death of the insured; and, third, the giving of the notice and proof of death as required by the policy — made out a prima facie case. — 25 Cyc. 925. The evidence being in conflict upon the issues raised by defendant’s special pleas, the general affirmative charge for defendant should not have been given.
Affirmed.
