Knights of the Modern MacCabees v. Gillis , 59 Tex. Civ. App. 109 ( 1910 )

Mary F. Gillis, joined by her husband A. W. Gillis, sought by this suit to recover from the Knights of the Modern Maccabees the sum of one thousand dollars, the amount of a benefit certificate in her favor on account of the death of her son, Furman A. Gillis. The trial resulted in a verdict and judgment in plaintiffs' favor for the amount sued for.

According to the agreement of the parties the real controversy between them is, whether death assessment No. 134 was paid to appellant or to some one duly authorized to receive the same, on or before October 30, 1906, and whether assessment No. 135 was paid on or before November 30, 1906. If these assessments were paid by Furman A. Gillis, or some one for him, before these respective dates, appellees, it seems would be entitled to recover, otherwise they would not. This is a sufficient statement of the case to make clear the assignments of error hereafter to be discussed.

Appellant complains first of the ruling of the court in refusing to permit it to introduce in evidence the notice and proofs of death furnished by appellees, and particularly that part of same which is contained in the affidavit of one O. D. White attached to and made a part of said proof of death, which affidavit shows that Furman A. Gillis paid assessments Nos. 134 and 135 on November 1, 1906. O. D. White was shown to be finance keeper of Bosque Tent, No. 1386, of appellant order, of which deceased was a member. This testimony was excluded on the objection by appellees that the same was hearsay as to them, and not binding. In this ruling the court erred. The proofs of loss, including the affidavit in question, were furnished to appellant in accordance with the terms of the contract between the parties, and their contents were admissible in evidence as representations on the part of these appellees as to the date of the payment of death assessment Nos. 134 and 135. The representations contained in them were intended to influence the company's action, and good faith and fair dealing would require that the appellees should be held to such representations, unless they can show in excuse that they were made under a misapprehension of the facts. It is not contended, nor can it be, that such representations are conclusive on the parties, but practically all the authorities agree that the proofs are admissible as representations, or "admissions by adoption," as some of the writers put it, subject, however, to explanation or contradiction. Mutual Benefit Life Insurance Co. v. Newton (U.S.), 22 L. ed., 793; Jno. Hancock Mutual Life Insurance Co. v. Dick (Mich.), 44 L. R. A., 846; Haughton v. Aetna Life Insurance Co. (Ind.), 73 N.E. 592; 2 Wigmore on Evidence, page 1265; 7 Encyclopedia of Evidence, page 574; 3 Elliott on Evidence, page 870. While some courts have held otherwise, the great weight of authority and the better rule, we think, is as above indicated. The question has never been decided, so far as we are aware, in this State, but the principle involved is illustrated in our holding that abandoned pleadings and the like may be offered in evidence as admissions of the party filing them. Barrett v. Featherstone, 89 Tex. 567 [89 Tex. 567]; Texas P. Ry. Co. v. Goggin, 33 Texas Civ. App. 667[33 Tex. Civ. App. 667] (77 S.W. 1053).

It is next insisted by appellant that the court erred in respect to the cross-examination of the appellee A. W. Gillis. This witness testified, in substance, that he had paid assessments Nos. 134 and 135 the first Monday in October, 1906, but on cross-examination admitted that he testified on a former trial that he paid these assessments in November, 1906. Appellant then asked the witness if it was not a fact that the reason he had changed his testimony as to the time and place he paid O. D. White these assessments was because on the first trial the jury had brought in a verdict against the plaintiffs. The court sustained the objection that this testimony would show the jury that the defendant gained the case on the first trial. It also appears by the explanation to the bill and from the statement of facts that the witness was fully cross-examined as to his testimony on the first trial. In this ruling, too, we think the court erred. It is, of course, true that the result of the first trial as such would not constitute evidence in the subsequent trial. But it is also true that the broadest latitude should be indulged on cross-examination to show a witness' bias or motive. The fact that the witness is a party, or otherwise interested in the recovery — is related to any of the parties, and the like — are cogent circumstances tending to affect his credibility. And the mere fact that it thus incidentally put before the jury the fact that a jury on a former trial had returned a verdict against the plaintiffs would not warrant the court in denying appellant the right to prove, if it could, that this witness, plaintiff as he was, had changed his testimony in the belief that the verdict on another trial would also be changed. Perhaps the evidence should have been limited by a charge, if requested, but, at all events, it should not have been excluded.

Again, the court erred in giving the following special charge requested by appellees, "You will not consider the evidence of the witness J. A. Feagin, stenographer, as to what the witness A. W. Gillis testified to on any former trial or trials of this case for any purpose, except that of contradicting or impeaching the credibility of said witness Gillis, if it does so, and as to whether it does or not you are to be the sole and exclusive judges." This was an improper limitation on the right of the jury to consider the testimony of the witness Feagin, in connection with the former testimony of appellee, A. W. Gillis. A. W. Gillis had joined with his wife in the institution of this suit, and as husband was vitally interested in the recovery, and was so far the representative of his wife that the jury might be authorized to consider his statements given in evidence on the former trial as admissions against her interest. From what has already been said it will be seen that such testimony was of a character to warrant such conclusions.

We find no other errors in the record, but for those discussed the judgment is reversed and the cause remanded for another trial.

Reversed and remanded.