Mutual Life Insurance Company v. Hillmon

MUTUAL LIFE INS.C.O. OF NEW YORK

v.

SAME.

No. 182.

NEW YORK LIFE INS.C.O.

v.

SAME.

No. 183.

CONNECTICUT MUT. LIFE INS.C.O. OF HARTFORD, CONNECTICUT,

v.

SAME.

No. 184.

May 16, 1892.

STATEMENT BY MR. JUSTICE GRAY.

On July 13, 1880, Sallie E. Hillmon, a citizen of Kansas, brought an action against the Mutual Life Insurance Company, a corporation of New York, on a policy of insurance, dated December 10, 1878, on the life of her husband, John W. Hillmon, in the sum of $10,000, payable to her within 60 days after notice and proof of his death. On the same day the plaintiff brought two other actious,-the one against the New York Life Insurance Company, a corporation of New York, on two similar policies of life insurance, dated, respectively, November 30, 1878, and December 10, 1878, for the sum of $5,000 each; and the other against the Connecticut Mutual Life Insurance Company, a corporation of Connecticut, on a similar policy, dated March 4, 1879, for the sum of $5,000.

In each case the declaration alleged that Hillmon died on March 17, 1879, during the continuance of the policy, but that the difendant, though duly notified of the fact, had refused to pay the amount of the policy, or any part thereof; and the answer denied the death of Hillmon, and alleged that he, thgether with John H. Brown and divers other persons, on or before November 30, 1878, conspiring to defraud the defendant, procured the issue of all the policies, and afterwards, in March and April, 1879, falsely pretended and represented that Hillmon was dead, and that a dead body which they had procured was his, whereas in reality he was alive and in hiding.

On June 14, 1882, the following order was entered in the three cases: 'It appearing to the court that the above-entitled actions are of like nature, and relative to the same question, and to avoid unnecessary cost and delay, and that it is reasonable to do so, it is ordered by the court that said actions be, and the same are hereby, consolidated for trial.' To this order the defendants excepted.

On February 29, 1888, after two trials at which the jury had disagreed, the three cases came on for trial, under the order of consolidation. Each of the defendants moved that the order be set aside, and each case tried separately; but the court overruled the motion, and directed that pursuant to that order, the cases should be tried as one cause, and to this each defendant excepted.

At the impaneling of the jury each defendant claimed the right to challenge peremptorily three jurors. But the court ruled that, the cases having been consolidated, the defendants were entitled to three peremptory challenges only, and, after each defendant had peremptorily challenged one juror, ruled that none of the defendants could so challenge any other jurors; and to these rulings each defendant excepted.

At the trial plaintiff in troduced evidence tending to show that on or about March 5, 1879, Hillmon and Brown left Wichita, in the state of Kansas, and traveled together through southern Kansas in search of a site for a cattle ranch; that on the night of March 18th, while they were in camp at a place called 'Crooked Creek,' Hillmon was killed by the accidental discharge of a gun; that Brown at once notified persons living in the neighborhood, and that the body was thereupon taken to a neighboring town, where, after an inquest, it was buried. The defendants introduced evidence tending to show that the body found in the camp at Crooked creek on the night of March 18th was not the body of Hillmon, but was the body of one Frederick Adolph Walters. Upon the question whose body this was there was much conflicting evidence, including photographs and descriptions of the corpse, and of the marks and scars upon it, and testimony to its likeness to Hillmon and to Walters.

The defendants introduced testimony that Walters left his home at Ft. Madison, in the state of Iowa, in March, 1878, and was afterwards in Kansas in 1878, and in January and February, 1879; that during that time his family frequently received letters from him, the last of which was written from Wichita; and that he had not been heard from since March, 1879. The defendants also offered the following evidence:

Elizabeth Rieffenach testified that she was a sister of Frederick Adolph Walters, and lived at Ft. Madison; and thereupon, as shown by the bill of exceptions, the following proceedings took place:

'Witness further testified that she had received a letter written from Wichita, Kansas, about the 4th or 5th day of March, 1879, by her brother Frederick Adolph; that the letter was dated at Wichita, and was in the handwriting of her brother; that she had searched for the letter, but could not find the same, it being lost; that she remembered and could state the contents of the letter.

'Thereupon the defendants' counsel asked the question, 'State the contents of that letter;" to which the plaintiff objected, on the ground that the same is incompetent, irrelevant, and hearsay. The objection was sustained, and the defentants duly excepted. The following is the letter as stated by witness: Wichita, Kansas, March 4th or 5th or 3d or 4th,-I don't know, 1879. Dear Sister and All: I now in my usual style drop you a few lines to let you know that I expect to leave Wichita on or about March the 5th with a certain Mr. Hillmon, a sheep trader, for Colorado, or parts unknown to me. I expect to see the country now. News are of no interest to you, as you are not acquainted here. I will close with compliments to all inquiring friends. Love to all. I am truly your brother, FRED. ADOLPH WALTERS.'

Alvina D. Kasten testified that she was 21 years of age, and resided in Ft. Madison; that she was engaged to be married to Frederick Adolph Walters; that she last saw him on March 24, 1878, at Ft. Madison; that he left there at that time, and had not returned; that she corresponded regularly with him, and received a letter about every two weeks until March 3, 1879, which was the last time she received a letter from him; that this letter was dated at Wichita, March 1, 1879, and was addressed to her at Ft. Madison, and the envelope was postmarked 'Wichita, Kansas, March 2, 1879;' and that she had never heard from or seen him since that time.

The defendants put in evidence the envelope with the postmark and address, and thereupon offered to read the letter in evidence. The plaintiff objected to the reading of the letter. The court sustained the objection, and the defendants excepted.

This letter was dated 'Wichita, March 1, 1879,' was signed by Walters, and began as follows:

'Dearest Alvina: Your kind and ever welcome letter was received yesterday afternoon about an hour before I left Emporia. I will stay here until the fore part of next week, and then will leavo here to see a part of the country that I never expected to see when I left home, as I am going with a man by the name of Hillmon, who intends, to start a sheep ranch, and, as he promised me more wager than I could make at anything else, I concluded to take it, for a while at least, until I strike something better. There is so many folks in this country that have got the Leadville fever, and if I could not of got the situation that I have now I would have went there myself; but as it is at present I get to see the best portion of Kansas, Indian Territory, Colorado, and Mexico. The route that we intend to take would cost a man to travel from $150 to $200, but it will not cost me a cent; besides, I get good wages. I will drop you a letter occasionally until I get settled down. Then I want you to answer it.'

Rulings upon other questions of evidence excepted to at the trial are not reported, because not passed upon by this court.

The court, after recapitulating some of the testimony introduced, instructed the jury as follows: 'You have perceived from the very beginning of the trial that the conclusion to be reached must practically turn upon one question of fact, and all the large volume of evidence, with its graphic and varied details, has no actual significance, save as the facts established thereby may throw light upon and aid you in answering the question, whose body was it that on the evening of March 18, 1879, lay dead by the camp fire on Crooked creek? The decision of that question decides the verdict you should render.'

The jury, being instructed by the court to return a separate verdict in each case, returned verdicts for the plaintiff against the three defendants respectively for the amounts of their policies and interest, upon which separate judgments were rendered. The defendants sued out four writs of error, one jointly in the three cases as consolidated, and one in each case separately.

Julien T. Davies, for plaintiffs in error Mutual Life Ins. Co. and New York Life Ins. Co.

Samuel A. Riggs and L. B. Wheat, for defendant in error.

[Argument of Counsel from pages 290-292 intentionally omitted]

''Edwd. S. Isham'', for plaintiff in error Connecticut Mutual Life Ins. co.

Mr. Justice GRAY, after stating the case as above, delivered the opinion of the court.