38 S.E.2d 534 | Ga. | 1946
1. Where the plaintiff and the defendant separately request a directed verdict, each in his favor, and the court directs a verdict for one of them, the other party, merely by his request for a directed verdict in his favor, does not consent to the direction of a verdict for one or the other.
(a) Under such circumstances, the party unsuccessful in his request for a *694 directed verdict in his favor does not waive the right to have the issues submitted to the jury, or the right to except on the grounds that it was erroneous to direct a verdict for the other party, or that the verdict so directed was erroneous.
2. Where an insured, bringing suit against an insurer for total and permanent disability on an endowment life-insurance policy which contains a rider or supplemental agreement attached thereto providing for disability benefits approximately 19 years after its issue, is met by an answer denying liability because of an alleged mistake on the part of a typist for the insurer, who attached a supplemental agreement for total and permanent disability benefits instead of double indemnity for death by accidental means, for which the insurer seeks reformation of the insurance policy — the burden is upon such insurer to show by clear, unequivocal, and decisive evidence that there had in fact been, in the preparation of the contract, such a mistake as is relievable in equity; that the insurer had not been negligent in the actual preparation of the contract or in discovering any mistake which may have appeared therein; that it had not been guilty of laches in making its defense for reformation; that the mistake was mutual or was a mistake on one side and fraud on the other; and that, in seeking reformation, it applies within a reasonable time.
3. In the absence of any showing that the insured had any knowledge of or connived with the insurer for the stated premium rate in the rider providing for total and permanent disability to be lower than to other persons, the insurer, approximately 19 years after the issuance and delivery of the policy and rider, and on its action to reform the contract for alleged mistake, could not lawfully contend that it was not liable, because the rate of premium which it had inserted in the face of the rider was lower than its rate-book schedule for such protection, and such rate would be a discrimination. The insurer will not be allowed to benefit by its own wrong, in which the insured was not likewise a wrongdoer.
4. Testimony of a plaintiff as to transactions or communications with an agent of a corporation which is the opposite party, where such agent was deceased at the time of the trial, is inadmissible.
The defendant in its answer admitted, in effect, that the plaintiff was in possession of an endowment insurance policy on his life, upon which the quarterly premium of $18.80 was paid; and admitted that the policy contained an endorsement or rider for total and permanent disability with a stated quarterly premium of 85 cents, which was paid; but denied that it was liable under the total and permanent disability provisions, because of a mistake alleged to have been made by an office clerk of the defendant in attacking to the said policy total and permanent disability-benefit provisions instead of double indemnity for accidental-death provisions. In said answer and by way of cross-action, the defendant, in substance, alleged: That "endowment at age 85, with double indemnity" was applied for by the plaintiff in his application dated October 27, 1922. An office clerk of the defendant through mistake attached the total and permanent disability slip or supplemental agreement instead of the double indemnity for accidental death. That from November, 1922, until some time in 1941, when he notified the defendant of his claim for total and permanent disability, the plaintiff had the policy in his possession, and *696 that the defendant did not discover the mistake until claim was made on the policy about June 16, 1941. The defendant, asserting that no such contract as claimed by the plaintiff could be upheld by the court, alleged that the quarterly premium of 85 cents, paid by the plaintiff for the supplemental agreement, was the proper amount to be charged for the double-indemnity insurance for death by accidental means, as requested by the plaintiff, but that the premium for total and permanent disability was $1.48 per quarter. To allow the plaintiff total and permanent disability insurance for the premium paid by him, would be a discrimination in favor of the plaintiff against other policy holders of the same class, in violation of the laws of Georgia, and would subject the defendant to danger of having its license revoked, and both the plaintiff and the defendant would be guilty of a misdemeanor. The defendant alleged further: that it was understood between the parties that the policy contained a provision for double indemnity in case of death by accidental means; and that this provision is in accordance with a double indemnity for accidental death form, representing the true agreement, a copy of which was made a part of the answer and attached as "exhibit A." The defendant alleged that the policy sued on should be reformed to express the true agreement between the parties, as shown by said application for insurance; and prayed that the total and permanent disability supplemental agreement, set forth in the petition as "exhibit B," be cancelled as having been issued through mistake, and that the policy provisions and agreements be reformed to express the true agreement between the parties as contained in the form for double indemnity in case of death by accidental means, attached as "exhibit A" to the answer. The total and permanent disability of the plaintiff was neither denied nor admitted.
The plaintiff filed a first amendment to his original petition, adding five paragraphs, to wit: 15. Alleging the accrual of four additional monthly benefits of $25.00 each, and an additional payment of a quarterly premium of $19.65; 16. Referring to and attaching a photostatic copy of the application for insurance, made by the plaintiff on October 27, 1922; 17. Alleging that at the time of the application for insurance, attached hereto, he had been in the United States only nine years, had not attended school, and was unable to read the English language, and that nothing had *697 been said with reference to a double-indemnity feature in said policy, either by the plaintiff or the defendant's duly authorized agent, E. S. Harter, and if "double indemnity" appeared anywhere in the original application for insurance signed by the plaintiff, the same was added without the plaintiff's knowledge or consent; 18. Alleging that the plaintiff had requested of the defendant's said agent, at the time of making said application, a policy that would give him and his family protection in case of his inability to work because of sickness or accident, and said agent said that his policy would include such a feature, and the plaintiff relied on said representation by the agent; that, when said policy arrived on or about November 8, 1922, said agent brought said policy to the plaintiff, and read him the provisions of said policy with reference to waiver of premiums and disability benefits, as set out in "exhibit B" of the original petition, and assured the plaintiff that the policy contained the protection requested by the plaintiff at the time of the application for insurance; 19. Further showing by way of answer to the allegations set out in paragraph 15 of the answer, that the defendant is not entitled to an equitable reformation of said insurance policy for the following reasons — (a) because the mistake that is alleged to have occurred was brought about by the defendant's own negligence; (b) because the mistake that is alleged to have occurred was brought about by the defendant's own want of reasonable care and diligence; (c) because the defendant is guilty of laches; and asking that the plaintiff's prayer for judgment, contained in paragraph (b) of the original petition, be stricken and in lieu thereof a larger named amount be recovered.
After the plaintiff's first amendment was allowed subject to demurrer, the defendant demurred thereto on grounds as follows: 1. That said petition and amendment set forth no cause of action. 2. Specially demurring to paragraph 15 of said amendment, and the wherefore clause, particularly section "(b) thereof, defendant shows that the plaintiff cannot amend his petition to set forth other claims, or claims for additional amounts, other than those set forth at the time of the filing of said petition." 3. The defendant specially demurs to paragraph 17 (paragraph 3 of said amendment), and shows that said paragraph sets forth no ground that would authorize the plaintiff to recover in this case, and the alleged *698 conversation if shown would vary the written contract, which is contrary to law. 4. The defendant specially demurs to paragraph 18 of said petition as amended (paragraph 4 of said amendment), on the ground that the facts set forth in said paragraph would be inadmissible, the purpose being to vary the terms of the written application of the plaintiff, which is contrary to law, and would be contrary to the contract set forth by the plaintiff in paragraph 16 (paragraph 2 of the amendment), wherein the application is attached to said petition as "exhibit C." 5. Further specially demurring to said paragraph 18, the defendant shows that the facts set forth in said paragraph would be an attempt to vary the terms of the written application, subsequently to the issuance of said policy, which would be unauthorized in law. 6. The defendant further shows that the facts set forth in paragraph 18 are inadmissible in evidence, and said paragraph should be stricken from said petition as amended. The defendant filed exceptions pendente lite to the overruling of these demurrers.
Later the plaintiff filed a second amendment to his petition, by adding a new paragraph numbered 20, setting out additional monthly benefits and quarterly payments of premiums since the filing of the original suit, and asking that the prayer for judgment against the defendant be amended to substitute the larger named amount.
A written stipulation between the parties was in evidence as follows: "It is agreed between counsel for the plaintiff and the defendant that no proof will have to be submitted in the above-stated case to establish the following facts: That on October 27, 1922, Zavel Yablon of Augusta, Georgia, executed part `A' of an application for a policy of life insurance to be issued by the Metropolitan Life Insurance Company; that question No. 14 of part `A' asked the `amount of insurance desired,' and his answer was $5000, and he further indicated that he desired to pay his premiums on a quarter-annual basis; that question No. 15 of part `A' asked the applicant to describe the plan of insurance being applied for, and to this question the applicant replied — `With Double Indemnity-Endowment at age 85;' that part `B' of the application was completed October 29, 1922; that copies of part `A' and `B' are attached to plaintiff's first amendment to the petition; that the company accepted the application, and on November 6, 1922, issued *699 to said Zavel Yablon its policy of insurance, No. 3467868-A, for $5000, and at the time of issuance, the company stamped the number of the policy on the application; that in May, 1923, the insured, Zavel Yablon, advised the Metropolitan Life Insurance Company, through its Augusta, Georgia, District Office that he was unable to longer carry $5000 worth of insurance and wanted the amount reduced to $2500. The application for this change was executed on May 16, 1923, and in the application Zavel Yablon agreed — `That the statements, answers, and agreements contained in the application on which the original policy was issued, together with this application, shall form the basis of the rewritten policy if one be issued;' that a new policy for $2500 was issued to the insured on the application dated May 16, 1923, and attached hereto is that new policy; that a premium of $39.30 was charged on the original policy and a total premium of $19.65 on the reduced policy; according to the rate book then currently being used by the Metropolitan Life, the quarter-annual premium payable for $5000 of endowment at age 85 life-insurance protection at Mr. Yablon's age was $37.60, and according to the same rate book the sum of $1.70 was the quarter-annual premium charged at that age for double-indemnity accidental-death coverage for such face amount of insurance; that the new policy for reduced coverage of $2500 had a total quarterly premium of $19.65, of which, according to the rate book herein before mentioned, $18.80 was for life insurance and 85 ¢ is an amount payable for accidental-death-benefit coverage; that, according to the same rate book referred to above, the quarter-annual premium charged by the Metropolitan Life for total and permanent disability insurance under a $2500 endowment policy payable at age 85 was $1.48; that the new policy for the reduced amount of insurance did not contain a double-indemnity accidental-death benefit provision, but did contain a total and permanent disability provision; that the original policy was returned to the home office of the company in order that the amount of insurance could be reduced, and then the amended policy was returned to the home office on or about May 18, 1931, so that a change of beneficiary could be endorsed on the policy; that on May 14, 1941, while said policy of insurance was in full force and effect, said Zavel Yablon, was stricken with coronary thrombosis and in addition suffered from a cerebral embolism *700 secondary to coronary thrombosis, and since said May 14, 1941, has been totally and permanently disabled, and has been unable to engage in any business for compensation or profit, and unable to perform any work, and has been advised by his physician that he will probably never again be able to engage in any business, trade, or occupation, or to do any work of any kind; that on or about May 25, 1941, said Zavel Yablon's wife notified the Metropolitan Life that plaintiff had become totally and permanently disabled under the terms of said policy and requested said Metropolitan Life to furnish forms upon which due proof of the disability could be made; that said Metropolitan Life denied any and all liability for total and permanent disability on the ground that Zavel Yablon did not have disability coverage, and refused to furnish forms upon which to make proof of disability."
The plaintiff, being the only witness in his own behalf, in the words of the brief of evidence, testified as follows: Direct examination — "My full name is Zavel Yablon. I arrived in the United States on September 13, 1913. I was born in Europe in the year 1883. That made me thirty-nine years old in 1922. At the time I took out this policy, I was in the shoe-repair business. I run my own shop and I did a large part of the work myself. I worked with my own hands and through my own efforts. I was working before for Sawilowsky, five years and seven months; after that I opened my own shop. I remember a Mr. Harter who represented the Metropolitan Life Insurance Company. He used to come around and bring some shoes to fix for his children. He come for me to take out the policy; he asked me to take out the policy. I discussed with him the type of policy I wanted. At a later date I received a policy from Mr. Harter. He bring me the policy and everything was all right; the policy that I wanted, the disability policy, and I can't read myself. He brought me the policy and said, `Everything is all right — what you want.' I tell the truth, I don't feel so good; I can't remember. He showed me the policy, and I can't remember whether he read the policy to me or not, it has been so many years ago. I remember he told me, `You got the policy what you want,' and later on I wanted to change the amount of the policy because it was five thousand and I changed the policy to twenty-five hundred dollars, and the man who used to go around collecting told me, `Listen, you got the policy; keep *701 them up and if you get sick before sixty years old, you going to have the protection.' I had a hard time paying the premiums, and I borrowed on the policy many times so I could keep up the premiums. I got sick May 14, 1941. I worked until the last minute; I got sick in the shop. I have not worked since that time. Not since I got sick. My doctor is Dr. Harper; he is a heart specialist. He has been attending to me since that time. I did not speak English when I came to the United States. At the time I took out this policy, or up until that time, I had not attended school. I could not read English at that time. I could understood just enough to get along."
Cross-examination — "I can write my name. That is my signature. I can read that — that is a `five,' five thousand dollars. I couldn't say what the next one is. As printed, I can not read that. The top one says `life insurance company.' This is part A of the application. I signed that paper — that is my signature. That is my signature here where I cut the amount from five thousand to twenty-five hundred. I made a change about the children. That is what was taken out for the children. Several times I borrowed on it. Q. Did it lapse several times? A. What you mean ? I paid the premiums at the time they became due. This policy was kept by me in my safe. I paid $19.65 in money for the policy. I can't see what it was on the five thousand. After it got twenty-five hundred, I paid $19.65 for a quarter. I was naturalized in 1925 — made an American citizen. At that time I could read and write a little bit — not much. But I couldn't read and write when this policy was taken out. I had a wife and some children. The children were not very old, but I was married. I think I took that policy before I got married. I can not read much now. I can read money. I know that is a `five' up there (indicating). The other one here is `eighty-five,' and that's `cents' — `eighty-five cents.' I don't know how much I paid. I know when it come to pay it was $19.65. I don't know if part of that was for the policy and part of it was for extra protection. I can't tell you that. I know I just paid $19.65. That is all I know that I paid — $19.65."
The portion of the plaintiff's testimony relating to and quoting a conversation with Mr. Harter was objected to on the grounds: that it would vary the written application; that its effect would be to force the insurance company to discriminate in favor of the *702 plaintiff; that the company would not be bound by any knowledge of the agent unless written in the application; that the evidence would not be admissible after the death of the agent, Mr. Harter, and after the policy was issued, and would be hearsay as to statements made by Mr. Harter, and self-serving in relation to the statements made by Mr. Yablon; that evidence of an alleged conversation between the plaintiff Yablon and Mr. Harter, a deceased agent of the defendant company, after the policy had been issued, was inadmissible, in view of that portion of the agreed statement of facts, to wit: "That question No. 15 of part A asked the applicant to describe the plan of insurance being applied for, and to this question the applicant (Yablon) replied, `With double-indemnity endowment at age 85.'" All of such exceptions are incorporated in the cross-bill in this case.
The defendant offered witnesses in its behalf, some of whom testified in person and others by deposition, together with supporting documents, which evidence in effect tended to show: that, instead of keeping an exact copy of the type of policy issued, the company kept card and paper records, indicating that a policy of life insurance with endowment at age 85 and double indemnity for death by accident was authorized to be issued; but that, through an error of a typist or clerk for the insurance company, the premium for and provisions relating to disability benefits were inserted by mistake, instead of the double indemnity for death by accident.
At the close of the evidence, the plaintiff and the defendant each made a motion for a directed verdict in his or its favor, respectively, and the trial court directed a verdict for the defendant.
Previously the court had overruled certain demurrers which the defendant had filed to the plaintiff's pleadings, and also had overruled certain objections to a portion of the testimony of the plaintiff; and the same, being excepted to pendente lite, are excepted to in the cross-bill filed herein and set out more fully in the opinion.
The plaintiff in the trial court filed his motion for a new trial upon the usual general grounds, and amended by adding special grounds, contending that the court erred in refusing to direct a verdict for the plaintiff, and contending that the court erred in directing a verdict for the defendant on the grounds: that there was a serious conflict in the evidence, and the evidence did not *703 demand the verdict so directed; that there was conflicting evidence on the material issues in the case; and that the evidence would have authorized an entirely different finding from that directed — because there was some evidence to support the contentions of plaintiff; because there were issues of fact which should have been submitted to the jury under proper instructions from the court, such as whether the company was charged with constructive knowledge that the policy provided for total and permanent disability benefits, whether the plaintiff was bound by the application by the words "double indemnity," and whether the defendant company was guilty of laches.
Upon the overruling of the motion for new trial as amended, the case was brought to this court.
1. It is error to direct a verdict, except where there is no conflict in the evidence as to the material facts, and the evidence introduced, together with all reasonable deductions and inferences therefrom, demands a particular verdict. Code, § 110-104; Hughes v. Cobb,
However, since the plaintiff also made a motion for a directed verdict, it is contended that he can not now be heard to complain that one was directed for the defendant, and in support of the contention, these cases are cited: Groover v. Savannah Bank Trust *704 Co.,
2. A mistake, either of law or fact, is cognizable in equity and affords a remedy therein by reformation of the instrument so as to make it express the true intention of the parties, on a proper cause being made; but such a jurisdiction will always be cautiously exercised, and to justify it the evidence must be clear, unequivocal, and decisive. Code, § 37-203; Wyche v.Greene,
With these general rules on reformation stated, how does the case under consideration stand? It is stipulated in the record that the plaintiff, at the time this suit was filed, was totally and permanently disabled, and that he had a policy of insurance of full force and effect issued to him by the defendant, which on its face obligated it to pay the amounts sued for. Such stipulation, of course, made out a prima facie case for the plaintiff; and nothing else appearing, he would have been entitled to prevail. The defendant sought to avoid liability by asking that the contract of insurance be reformed because of an alleged mistake in the preparation of the same with respect to the type of protection it was intended to offer. The defendant contended that both parties intended that the coverage should be for endowment at age 85 with double indemnity in case of accidental death; and that by mistake a rider or supplement was unintentionally attached, providing for benefits in case of total and permanent disability. Therefore this defense against liability was an affirmative one, for an equitable reformation of the contract. To be entitled to such relief, the burden rested upon the defendant to show by clear, unequivocal, and decisive evidence: (1) that, in the preparation of the contract, such a mistake had in fact been made as is relievable in equity; (2) that the defendant had not been so negligent in the execution of the contract or in discovering any mistake which may have appeared therein as to estop it in equity to ask for a reformation; and (3) that it had not been guilty of laches in making its defense for reformation.
With respect to this burden, what does the record show ? The answer alleges: "That at the date of the issuance of said policy, through the mistake of a clerk in the office of the defendant in New *706 York City, N. Y., instead of the slip or supplemental agreement for double indemnity for accidental death requested by the defendant, there was attached to said original policy the supplemental agreement providing for total and permanent disability." Neither in the pleadings nor in the proof is there even so much as a suggestion that the plaintiff had any part in the actual preparation of the contract. The defendant placed full responsibility for the alleged mistake upon its own employee — a typist in its home office at New York. The record is entirely silent as to any mutual mistake in the actual preparation of the contract. Is there in the record, then, such evidence of mistake on the part of the defendant and such fraud on the part of the plaintiff as would justify the direction of a verdict for the defendant on that theory? We think not. The only allegation with reference to fraud on the part of the plaintiff is: "Plaintiff had the policy in his possession during all of the time from November, 1922, until some time in 1941." But with respect to this allegation the evidence is without dispute that on at least three different occasions during that period of time the defendant had actual possession of the policy — once during May, 1923, when the policy was reduced from $5000 to $2500 on application of the insured; again on May 18, 1931, so that a change of beneficiary could be endorsed on the policy, and as testified by plaintiff, "I had a hard time paying the premiums and I borrowed on the policy many times so I could keep up the premiums." In this connection, R. F. Goodson, manager of the defendant's Augusta, Georgia, office, while testifying as a witness for the defendant, said: "We know it [the policy] got to the company three times." It seems very clear to us that the company had ample opportunity, by any degree of diligence, to have discovered any possible mistake made in the execution of the contract. When the policy was returned to the company for the purpose of reducing the amount of coverage from $5000 to $2500, the company had full opportunity to examine the policy, and the very fact that it was returned by the insured for this purpose, we think, completely negatives the contention that he was undertaking in any way to conceal from the company the provisions it actually contained. Conceding that the application made by the insured was for "endowment at age 85 with double indemnity," and that the insurer issued a policy to him for a different type of protection, can it be said as a matter of *707 law that the retention of such a policy was a fraudulent act on the part of the insured? We think not. It is a matter of common knowledge that insurance companies frequently accept applications for insurance protection, but issue a contract for less protection than that applied for. Then, too, it must be kept in mind that the insured here was a person of foreign birth, had been in this country for only a short time, knew and spoke but little of the English language, and doubtless knew still less about the insurance business. It is, we think, very reasonable to assume that "double indemnity" and "disability insurance," to one so unlearned and uninformed about insurance contracts, might have been synonymous terms. In fact, we seriously doubt if either term had any meaning at all to the insured here. They are simply trade names employed by insurance companies to express different types of insurance protection. "Double indemnity," to one not skilled in the insurance business, could unquestionably have various meanings.
It has been so many times held by this court that it is the duty of one executing a contract to read it that we think it wholly unnecessary to cite the authorities here. In 32 Corpus Juris, P. 1142, § 249, it is stated: "A court of equity usually will not reform a policy in order to relieve a party from a mistake which was the result of his own negligence." In Newsome
v. Harrell,
Has the defendant been guilty of laches to the extent that it would now be inequitable to allow reformation? Unquestionably the evidence did not justify the direction of a verdict that the company had not been so guilty. The record shows that the defendant has waited from November 6, 1922, to February 11, 1942, to assert its right for such equitable relief. In the meantime it has collected all of the premiums fixed by it as due, and frequently has had actual possession of the policy, with ample opportunity to examine it; the insured has grown old and become totally disabled, making it now impossible for him to secure the type of insurance which he insists that he requested; the agent who solicited the contract has died; and the insured is not permitted to testify in his own behalf to transactions or communications solely with such deceased agent of the insurer. The mere lapse of time alone may be sufficient to justify the presumption that the defendant's contention here is not well founded. "Equity gives no relief to one whose long delay renders the ascertainment of the truth difficult, though no legal limitation bars the right." Code, § 37-119. In Manry v.Manry,
Considering the policy of insurance executed and delivered to the plaintiff nearly twenty years before the suit was brought, together with the stipulation of fact in the record, and the evidence as a whole, a verdict for the defendant was not demanded, if indeed it was authorized, since the burden was on the defendant to show his right for reformation by clear, unequivocal, and decisive evidence.
3. It was not shown by any evidence that the insured had any knowledge of or connived in any way with the insurer for the stated premium rate in the rider, providing that payments for total and permanent disability would be lower than the prescribed rate applicable to other persons. In the absence of such showing, we do not think that the insurer, approximately 19 years after the issuance and delivery of the policy and rider, and on its action to reform the contract for alleged mistake, could lawfully contend that it was not liable because the rate of premium which the company inserted in the face of the rider was lower than its rate-book schedule for such protection, and because this would be a discrimination. The defendant will not now be allowed to benefit by its own wrong, in which the plaintiff was not likewise a wrongdoer.
4. In the cross-bill of exceptions, certain testimony of the plaintiff Yablon is questioned as to its admissibility, the testimony being: "He [E. S. Harter, agent of the company] bring me the policy and everything was all right; the policy that I wanted, the disability policy, and I can't read myself. He brought me the policy and said, `Everything is all right — what you want.' I tell the truth, I don't feel so good; I can't remember. He showed me the policy, and I can't remember whether he read the policy to me or not, it has been so many years ago. I remember he told me, `You got the policy what you want,'. . and the man who used to go around collecting told me `Listen, you got the policy; keep them up and if you get sick before sixty years old, you going to have the protection.'" This last quoted testimony was objected to and excepted to on the grounds: that it would vary the written application; if allowed, it would force the insurance company to *710 discriminate; the company would not be bound by any knowledge of the agent unless written in the application; it would not be admissible after the death of Mr. Harter; and the alleged conversation between the plaintiff and Mr. Harter, a deceased agent of the defendant company, was inadmissible in view of the stipulation as to the question and answer under No. 15 of part A of the application.
The objection that the testimony would vary the written application is without merit, because, as hereinabove stated, the words "with double indemnity" are not so well understood by the average person, or a person under the circumstances of the plaintiff in this case, as to bind him to the insurance terminology of "payment of twice the amount of the policy in the event of death through accidental means," when the latter defining words did not appear in the application. For the same reasons the plaintiff's answer to question 15 of part A of the application, wherein it is stated "with double indemnity," does not make the testimony inadmissible.
The last words of the portion of the testimony of the plaintiff objected to — to wit, "and the man who used to go around collecting told me, `Listen, you got the policy; keep them up, and if you get sick before sixty years old, you going to have protection'" — are not shown to be the words of the agent Harter or of any deceased or insane agent of the defendant company, and in the absence of applicable objections to the said portion of such testimony, it was admissible.
The other portion of the testimony of Yablon, insofar as it relates to transactions or communications with E. S. Harter, deceased agent of the defendant corporation, was inadmissible under the provisions of the Code, § 38-1603, which declares: "Where any suit shall be instituted or defended by a corporation, the opposite party shall not be admitted to testify in his own behalf to transactions or communications solely with a deceased or insane officer or agent of the corporation."
Regardless of the portion of the testimony of the plaintiff being inadmissible upon the ground that it was a transaction or communication with a deceased agent of the defendant corporation — and to that extent the judgment on the cross-bill is being reversed — there were sufficient other reasons, as hereinabove pointed out, why it was erroneous to direct a verdict for the defendant. *711
The exceptions in the portion of the cross-bill dealing with the overruling of special demurrers to paragraphs 17 and 18 of the amendment to the petition are without merit for the reasons previously stated.
Judgment reversed on main bill of exceptions; reversed inpart, and affirmed in part on the cross-bill. All the Justicesconcur.