Summary
In Inter-Ocean Casualty Co. v. Stallworth, 221 Ala. 71, 127 So. 850, the witness' testimony, that he did not purposely discharge the gun injuring him, held not inadmissible as being within the secret motive rule.
Summary of this case from Pollard v. RogersOpinion
6 Div. 450.
April 10, 1930.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
Altman Koenig, of Birmingham, for appellant.
Plea 3 was not subject to demurrer, and charge 20 should have been given. The question to plaintiff as to purposely discharging the gun was invasive of the jury's province. L. N. v. Bogue, 177 Ala. 349, 58 So. 392; Dersis v. Dersis, 210 Ala. 308, 98 So. 27.
Fort, Beddow Ray and G. Ernest Jones, all of Birmingham, for appellee.
In construing an insurance contract, its terms, conditions, duties, and obligations will be construed liberally in favor of the assured and strictly against the insurer. Royal Ins. Co. v. Lubelsky, 86 Ala. 530, 5 So. 768; Ga. Home Ins. Co. v. Allen, 119 Ala. 436, 24 So. 399, Mobile, etc., Ins. Co. v. McMillan, 27 Ala. 77; Piedmont, etc., Ins. Co. v. Young, 58 Ala. 476, 29 Am. Rep. 770; Empire L. I. Co. v. Gee, 178 Ala. 492, 60 So. 90; Tubb v. Liverpool, etc., Ins. Co., 106 Ala. 651, 17 So. 615; Ala., etc., Ins. Co. v. Johnston, 80 Ala. 467, 2 So. 125, 59 Am. Rep. 816; Continental Cas. Co. v. Ogburn, 175 Ala. 357, 57 So. 852, Ann. Cas. 1914D, 377; National, etc., Ins. Co. v. Lokey, 166 Ala. 174, 52 So. 45. A witness may testify to his own purpose when doing a thing. 22 C.J. 610; Hill v. State, 156 Ala. 3, 46 So. 864; Eckerd v. Weve, 85 Kan. 752, 118 P. 870, 38 L.R.A. (N.S.) 516; Chambers v. Chambers, 227 Mo. 262, 127 S.W. 86, 137 Am. St. Rep. 567; Birmingham Ledger Co. v. Buchanan, 10 Ala. App. 527, 65 So. 667, 670; Price v. State, 107 Ala. 161, 18 So. 130; B. R. E. Co. v. Jackson, 136 Ala. 279, 34 So. 994; Mobile E. L. Co. v. Elder, 115 Ala. 138, 21 So. 983; Wilson v. State, 110 Ala. 1, 20 So. 415, 55 Am. St. Rep. 17; Cranford v. State, 16 Ala. App. 68, 75 So. 274. The application and the policy must be construed together. Kelly v. L. I. C. Co., 113 Ala. 453, 21 So. 361; Satterfield v. Fid. Mut. L. I. Co., 171 Ala. 429, 55 So. 200; Mobile, etc., Co. v. Walker, 58 Ala. 290.
The suit is upon an accident indemnity policy of insurance to recover the agreed indemnity for loss of a hand from an alleged accidental gunshot wound.
Plea No. 3 presented a good defense in reduction of the recovery, unless the complaint to which it was addressed disclosed facts to which the plea presented no answer.
The policy sued upon, including the application made a part of the contract, was made an exhibit to and part of the complaint.
Among the statements in the application was this: "10. I have no other accident or health insurance, except as herein stated: Cancelling B. A. R. E."
Parties agree "Cancelling B. A. R. E." refers to a policy then held by the insured in "Benefit Association of Railway Employes," the same policy alleged in plea 3 to be still in force at the time of the injury.
Appellee's view is that the information thus given met the requirement of the contract set up in plea 3: or to withdraw the policy then held from the provision for notice set up in such plea. We cannot concur in this view.
It did, of course, give written notice that at the time the application was made the insured held the other policy, but in the same written notice the insured stated he was "cancelling" same. It was an invitation to issue the new policy upon a status of no other insurance being carried except pursuant to the terms of the new policy.
The statement "Cancelling B. A. R. E." was not a written notice that the insured was still carrying such policy at the time of the injury, more than eighteen months thereafter, but as for that policy it was notice to the contrary.
The trial court erred in sustaining the demurrer to plea No. 3.
The case went to the jury on the general issue, and plea 2 setting up that the injury was intentionally self-inflicted, a hazard excepted from the coverage of the policy by its terms.
Defendant's refused charge 20, however correct, if plea No. 3 had not been stricken by demurrer, was not addressed to any issue before the jury. The same applies to other instructions discussed in brief.
The plaintiff, having given in some detail as a witness his version of the accident, the discharge of the gun while getting up from a chair where he had been cleaning the gun, was asked: "You didn't purposely discharge the gun, did you?" Objection being overruled, the witness answered: "No, sir."
The question called for a statement of fact: The description or designation of an occurrence; whether the gun was fired by him purposely; or whether it was discharged by accident.
The question is not within the rule forbidding a witness on direct examination to give his secret motive or purpose in doing an act which he has done. Robinson v. Greene, 148 Ala. 434, 43 So. 797; Birmingham Ledger Co. v. Buchanan, 10 Ala. App. 527, 65 So. 667; Tennessee River Nav. Co. v. Walls, 209 Ala. 320, 96 So. 266.
The insistence in brief is that the witness was thus allowed by direct denial to pass upon the issue being tried by the jury. There are cases involving mixed questions of law and fact, where the witness cannot invade the province of the jury in this regard. Dersis v. Dersis, 210 Ala. 308, 98 So. 27.
But this rule does not prevent deposing to a fact, however vital to the issue. Thus, in a suit on an alleged contract, the witness could certainly deny categorically having made a contract; or if a given representation is made the basis for an action or defense, the party could say whether he did or did not make such representation. We find no error in permitting the question and answer complained of.
For the error above pointed out, the judgment is reversed and cause remanded.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.