79 Va. 421 | Va. | 1884
delivered the opinion of the court:
The grounds of demurrer assigned are, first, that the assured did not sustain such a relation to the insured as would entitle him to recover, and second, that the interest of the assured was not sufficiently set forth in the declaration of the plaintiff. Neither of these grounds can be maintained, for, as to the first objection no matter what doubt may have been formerly entertained on the subject, it is now well settled that a father has an
The real point of controversy at the trial, was whether Samuel Teewalt, the insured, had misrepresented his age in his application for the policy; and accordingly, the defendant, during the trial, took eight bills of exceptions, several of which have reference to the exclusion or admission of the testimony of witnesses supposed to have a bearing upon that point; and others of which refer to the action of the court in giving a certain instruction and in refusing to give certain other instructions which relate to the same point. The first of these exceptions is taken to the refusal of the court to permit the defendant to ask a witness, one Joseph S. Irwin, “if he knew the age of Samuel Teewalt, the insured, at the time of the issuing of the certificate of membership or policy of insurance in,” &c., * * “ by any statements that said Teewalt made to him * * in 1863, or 1864, as to his age?” But the action of the court in this respect was clearly right. The statements of the insured, made seventeen or eighteen years before he obtained the policy, clearly are not admissible as evidence to disprove the statement made as to his age in his application for membership. They were the declarations of a stranger, who was neither a party to the action, nor at the time of making them the agent of the party. Bliss on Life Ins. § 372. On this subject the supreme court of Kansas, in a late case says: “ The contract is between the assured and the insured. * * * • * The party insured is not party to the record, and therefore her declarations are not
We also think, that the court properly refused to permit the defendant to ask the witness, Charles Welsh, “what was the age of Samuel Teewalt, according to his appearance, and according to his (Welsh’s) best judgment,” which is the subject of the second bill of exceptions. The sole object of the inquiry evidently was to draw from the witness an expression of his judgment, i. e. his opinion of Samuel Teewalt’s»age from his appearance; this the defendant was forbidden to do, not only by the general rule which excludes such evidence, but also by the third instruction which the court gave at his instance, and which instructs the jury that they “cannot consider in the determination of the matter, the opinions or suppositions of witnesses as to the age of Samuel Teewalt, but are confined to the actual facts and knowledge of witnesses as proven.” The question we think was plainly inadmissible.
The defendant’s next assignment of error is equally untenable.
The next assignment of error, which is the subject of the fifth bill of exceptions, is, that the plaintiff was allowed to ask of one Henry Rudolph substantially the same question which the defendant had been prohibited from asking the witness, Welsh. But in this we think he is mistaken. Rudolph was first asked if he knew the age of Samuel Teewalt. To which he replied
Here the bill of exceptions fails to state the answer, and the court is therefore unable to say whether it was admissible or not. In Stoneman v. Commonwealth, 25 Gratt. 887, this court said: “ An objection to a question asked, and to the witness answering it, is overruled, and an exception taken, which does not state the answer. The appellate court cannot consider it.” This ruling is decisive of the exception now under consideration, and shows that it constitutes no ground for a reversal of the judgment in this case. After all the evidence was introduced by both par
The next exception is taken to the action of the court in refusing to give three instructions asked for by the defendant, and in giving in lieu thereof an instruction of its own. But as the exception does not set out sufficient matter to show whether they were relevant or not, this court will not undertake to decide whether the court below erred in giving the one or in refusing the others. Fitzhugh’s Ex’or v. Fitzhugh, 11 Gratt. 301; Harman v. City of Lynchburg, 33 Gratt. 43; Powell v. Tarry’s Adm’r, 77 Va. R. 260.
As to the objection taken at the trial to the introduction of rebuttal testimony, it seems sufficient to say that the burden of proof being on the defendant to establish that Samuel Teewalt
A motion for a new trial was also made and overruled by the court, but as there is no proper certificate, either of evidence or of facts, it cannot be considered. The court, indeed, certifies that the evidence was conflicting upon nearly all the matters in controversy, but does not undertake to set out the evidence. In such a case the appellate court cannot, as a general rule, set aside the verdict. Grayson’s Case, 6 Gratt. 713; Caldwell v. Craig, 21 Gratt. 136.
We find no error in the judgment of the circuit court of Shenandoah county, and the same must be affirmed.
Judgment affirmed.