German-American Insurance v. Brown , 75 Ark. 251 ( 1905 )

McCulloch, J.,

(after stating the facts.) 1. It is urged by-appellants that the court erred in permitting appellee to introduce in evidence letters and telegrams addressed by McKibben while in St. Paul to Brown. These communications all related to the negotiations and purchase of the goods, and the only objectionable features thereof were expressions of McKibben’s opinion concerning the condition and value of the goods.- This testimony was competent for the purpose of showing Brown’s good faith in fixing the value of the goods in the proof of the loss. He stands charged with false swearing in that particular. He had not examined the goods, and had no knowledge of the value except that gained from an examination of the inventory and the statements of McKibben. The statement of value made in the proof of loss was not required to be within his personal knowledge, but any willfully false statement as to the value of the goods and amount of loss avoided the policy. Therefore he was properly permitted to show his means of information upon which his statements as to value were based.

For another reason appellants are precluded from complaint at the introduction of this evidence. They first drew out, on cross-examination of appellee, the testimony as to communications from McKibben, and read in evidence two of the telegrams received by appellee from him. Where one party introduces incompetent testimony, he cannot complain of the action of the court in allowing the other party to introduce the same character of evidence directed to the same point at issue. He waives all objection to error which he thus invites. St. Louis & S. F. R. Co. v. Kilpatrick, 67 Ark. 47; Klein v. German Nat. Bank, 69 Ark. 140; Standard Life Ins. Co. v. Schmaltz, 66 Ark. 588; 1 Thompson on Trials, § § 706, 707; Elliott, App. Proc. § 626; Reynolds v. State, 27 Neb. 90; Fillmore v. Union Pac. Ry. Co., 2 Wyo. 94.

For the same reason appellants cannot complain of the introduction by appellee of the McKibben letters written to his wife and to appellee Brown, respectively, immediately before his suicidal act. Appellants invited the error by their own course of examination and introduction of testimony. The letter addressed to appellee Brown was as follows: ,

“Duncan, I. T., May 7, 1901.

“J. R. Brown, Esqr.

“Dear Sir: Our business has been a failure, and I cannot live any longer, as it is only trouble. I want to be buried at Duncan, as I don’t want my friends at home to forego the humiliation.. I am innocent of the charges made against me by Carson, and hope it may be known some time. You are justly entitled to your insurance, and should have it without delay. I hope you will'be able to get a settlement without delay. Yours truly,

“F. R. McKibbpn.”

The letter to his wife was of the same import, except that it contained no reference to the Carson charges, and did contain matters of personal confidence and words of affectionate farewell to his wife and children. These letters were found by appellee in McKibben’s valise the day of his death, but before discovery of his suicide.

Appellants first drew out, over the objection of appellee, the fact of McKibben’s suicide, and all the circumstances thereof, and the charges made against him by Carson. On cross-examination, they elicited from appellee testimony concerning these matters and the conduct and statements of McKibben throughout. They caused appellee to state in his testimony the fact that he found the letters in McKibben’s valise, and that they contained information of his suicidal intent. The manifest design of appellants in making this proof, together with the proof that McKibben was charged with having burned the property, was to dfaw. the inference that he committed suicide because of his guilt of the charge, and to escape the consequences thereof. After putting all these irrelevant facts before the jury by incompetent testimony, and after proving the finding and existence of the letters, they cannot complain of the introduction of the letters themselves. The introduction of the letters was clearly invited error.

2. The court gave no instruction as to' the defense tendered that McKibben & Brown failed to-exercise care to preserve the property, and refused to give the following instruction on that subject asked by appellant:

“The court instructs the jury that if they find from the evidence that said contract of insurance contained a provision that said defendant company should not be liable for loss caused directly or indirectly by neglect of the insured to use all reasonable means to save and preserve the property covered by said contract of insurance entered into between plaintiff and defendant at and after the fire, and if you find that plaintiff failed to use all reasonable means to save and preserve said property at or after the fire, said failure would avoid the contract, and defendant would not be liable to plaintiff for loss arising thereunder, and your verdict should be for the defendant.”

This instruction was properly refused for two reasons. In the first place, there was no testimony tending to show that either McKibben or Brown had, in the language of the policy, neglected to “use all reasonable means to save and preserve the property at and after the fire.” The burden was upon appellants to prove such negligence on the part of the insured. There was a conflict in the testimony as to whether or not some of the property could not have been saved by the bystanders, but none that either of the insured could have done so. The testimony introduced by appellants showed affirmatively that Brown did not reach the scene of fire until too late to have saved any of the property; and that McKibben was suffocated, and in a helpless condition, and unable, for that reason, to save any of the property.

The instruction was objectionable and improper for the reason that it, in effect, told the jury that, if the insured neglected to use all reasonable means, to save the property, that would avoid the policy. Such was not true under the terms of the policy, as it provided for no forfeiture of the contract because of a failure to save some of the property. The effect of such neglect on the part of the insured would only have been to prevent a recovery of so much of the property as could have been saved by the use of reasonable means at their command. The language of the policies on that subject is as follows: “This company shall not be liable for loss caused * * * by neglect of the insured to use all reasonable means to save and preserve the property at and after the fire.” This language cannot be interpreted to mean that a negligent failure to use such means to save the property works a forfeiture of the entire policy. The instruction asked by appellants conveying that interpretation of the contract was therefore erroneous, and was properly refused. Even if there had been evidence to support an instruction upon this phase of the case, appellants cannot, without asking an instruction in proper form, complain at the omission of the court to instruct on the subject.

Many other instructions were asked by the appellant, and refused by the court, but we think that the instructions given by the court correctly placed before the jury the law applicable to the case upon the issues raised by the pleadings and evidence.

Upon the whole, we find no error for which appellants can ask a reversal, and the judgment is therefore affirmed.