Yarbrough v. Prudential Ins. Co. of America ( 1938 )

PER CURIAM.

The insurance agent is not directly interested in the result of the case so as to disqualify him as a witness at common law, but his situation affects his credibility. If he collected no premium as he says, he owes his Company nothing in this transaction. If he collected it he owes it, for he has not paid it over. His testimony also lacks one of the ordinary sanctions attending an oath, because if false he could not successfully be prosecuted for perjury, since the only witness against him is dead. At least two circumstances in the case are against his testimony: That he did not take the receipt for the policy customarily taken where delivery is for examination only; and did not seek to recall the policy the next day when it was not paid for according to the agreement he says was made. All these things make his testimony not conclusive, but to be weighed by the jury together with his manner and demeanor in testifying.

Mrs. Yarbrough, of course, has a direct interest in the result of the trial, and the truth of what she testifies is likewise for the jury. What she says her husband told her in mere conversation when he was doing nothing about the policy is only hearsay, no more admissible than what he said to his friends. But the fact that he turned the policy over to her, she being the beneficiary, instead of turning it back to the Company has been admitted without objection, and rightly. That was an act with reference to the policy; a circumstance to show the .character of his possession of the policy. But it was- an ambiguous act, for she had a specimen copy of the policy and the agent testifies he let the policy out of his hands to be compared with this specimen copy. What the deceased said in handing the policy to her, in effect that it was hers and paid for, tends to show that he was not turning it over to her for comparison but to keep as her own. What he said about payment is not to be considered direct testimony that it was paid for, but that together with the rest of his statement is res gestae of his possession of the policy. Lovett v. State, 80 Ga. 255, 4 S.E. 912; Walker v. State, 28 Ga. 254; Brown v. Cantrell, 62 Ga. 257. “All those declarations that were made at the time of taking possession, or while in the actual possession, explaining the nature of his possession, and his intent in such occupancy, are admissible as parts of the res gestas, but sucfi as constitute a narrative or statement of the past, such as that he had bought the land; that he had taken possession, and had held possession and used the land as his own for such a space of time, are not parts of the res gestas, and were improperly admitted.’ Carrol v. Gillion, 33 Ga. 539, 546. His declaration clarifies the nature of his act in dealing with the policy, tending to establish it as an act of ownership. That act thus clarified is only circumstantial evidence, to be used by way of argument as to whether it is. likely or not that he would have so turned over to his wife as hers a policy which he knew was loaned and. not paid for. The weighing of all these circumstances and all the testimony is for the jury.

Motion denied.