Opinion
Certiorari denied 112 So. 918.
March 22, 1927. Rehearing Denied April 12, 1927.
Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.
Action on policies of life insurance by Rebecca Tate against the Southern Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Count 1 declares upon a policy on the life of Harry Tate, issued November 15, 1920, for $250; count 2, upon a policy issued February 19, 1923, for $100. In each it is alleged that the insured died November 17, 1923.
Defendant's pleas defend against the first count upon the ground that, at the time the contract of insurance was entered into, the age of the insured was given at 49 years, when he was, in fact, 62 years of age; that the policy provided that if the age of the insured was not correctly stated no greater amount should be paid than the premium paid would purchase at the true age of the insured; that said premium would purchase $140 of insurance at age of 62.
As to count 2, the pleas assert that, at the time of the issuance of the policy sued on in this count, defendant was not insuring any person over the age of 60 years; that the age of the insured was given at 49 years, whereas he was, in fact, 65 years of age; and that defendant was due no more than the premiums paid, $6.35.
By further plea defendant sets up an accord and satisfaction, alleging that defendant tendered to plaintiff the $146.35, which was received by plaintiff in full satisfaction of the policies sued on.
In his opening statement to the jury counsel for plaintiff stated that:
"He expected the evidence to show that when Harry Tate lived the defendant guessed his age one thing, and when he died they guessed his age another thing."
The plaintiff was asked this question:
"Well, in your judgment, how old was he when he died?"
Plaintiff's son, testifying as a witness, was asked:
"In your judgment, how old was your father when he died?"
Defendant's objections to these questions were overruled.
The answers were, respectively:
"Well, I think he was about 51 or 52,"
And:
"I expect about 50 or 49."
Plaintiff testified that she went to the office of defendant's superintendent, Jordan, and that after keeping her waiting 2 or 3 hours Jordan gave her a paper, which she did not know was a check, which she signed and turned over to her son to examine; that she refused to take the check which was for $146 instead of $214. Over defendant's objection, plaintiff testified that her son said to Jordan:
"No wonder you been keeping my mama all this time — trying to beat her out of the insurance money."
Witness Jordan, having testified to the details of the transaction in which a check was tendered to plaintiff, was asked on cross-examination:
"Do you remember Annie Wilson's claim?"
Defendant objected to this question, whereupon plaintiff's counsel stated that there were two cases that came up at the same time which were handled by counsel, that the testimony of witness was similar in both cases, and that it was the purpose of counsel to see if witness was not confused in some of the facts — did not confuse the two cases.
The substance of the answer was that witness remembered the details of that claim.
Bradley, Baldwin, All White, of Birmingham, and Hubert S. Lipscomb, of Jackson, Miss., for appellant.
It was error to overrule objection to the opening statement of counsel for plaintiff. Loeb v. Webster, 213 Ala. 99, 104 So. 25; Perry v. Wilson, 160 Ind. 435, 67 N.E. 183. Opinion evidence as to age of insured was erroneously admitted. Martin v. State, 90 Ala. 602, 8 So. 858, 24 Am. St. Rep. 844; Valley Mutual L. A. v. Teewalt, 79 Va. 421. Matters irrelevant to the issue and tending to mislead and prejudice the jury should be excluded. Governor v. Campbell, 17 Ala. 566; Karr v. State, 106 Ala. 1, 17 So. 328. Evidence concerning other cases or transactions between a party to the suit and a stranger is inadmissible. Bunzel v. Maas, 116 Ala. 68, 22 So. 568; Parsons v. Age-Herald, 181 Ala. 439, 61 So. 345.
W. A. Jacobs, of Birmingham, for appellee.
It is permissible for attorneys to state what they expect the evidence to show. Loeb v. Webster, 213 Ala. 99, 104 So. 25; S. A. L. v. Rentz, 60 Fla. 449, 54 So. 20. General ground of objection to a question is not ordinarily sufficient to put the court in error for overruling the objection. Circuit court rule 33, 4 Code 1923, p. 906; Fulton Bag Cotton Mills v. Leder Co., 207 Ala. 350, 92 So. 613. When one party has already adopted and followed a certain method of proving a proposition, he cannot complain at the other party for following the same method. Mobile Co. v. Ladd, 92 Ala. 287, 9 So. 169. The wife and son of a man may give their best judgment of his age. Winter v. State, 123 Ala. 1, 26 So. 949. Great latitude is allowed on cross-examination. 40 Cyc. 2564.
No question is raised for our consideration on the pleadings.
The age of insured was the controlling factor in the case. It was never definitely stated by any witness or party in interest. In view of all the circumstances, we cannot see the fault in the opening statement of plaintiff's (appellee's) counsel, undertaken to be pointed out by appellant. The case of Loeb v. Webster, 213 Ala. 99, 104 So. 25, is not, we think, an authority to the contrary of the view we take.
The questions put by plaintiff's (appellee's) counsel to the witnesses Rebecca Tate and Harry Tate, the wife and son of deceased (insured), as to their judgment as to deceased's age, seem not to be materially different from questions on the same subject put by appellant's counsel, and for this reason the action of the court in allowing said questions and the answers thereto would perhaps not be erroneous. Morris v. Corona Coal Co., 215 Ala. 47, 109 So. 278.
But, anyway, we think the two witnesses named, by virtue of their long association with deceased, were properly allowed to give their judgment as to his age. Winter v. State, 123 Ala. 1, 26 So. 949.
What was said and done by the parties, at the time of the delivery of the check by appellant's agent to appellee, seems to us, in the light of the issues as to an accord and satisfaction, properly admitted in evidence. Consequently, the court did not err in refusing to exclude the statement of appellee's son, who was present and undertaking to assist her.
Neither do we think there was error in allowing the question, on cross-examination of the witness Jordan, as to whether he remembered another claim against the same defendant. The purpose of the question was stated. It did not seek the particulars of any other matter. And on cross-examination, as it was, it seems to us not to have been improper.
The motion for a new trial was properly overruled.
We can see nowhere any prejudicial error committed by the trial court, and, the record being in all things regular, the judgment ought to be and is affirmed.
Affirmed.