Opinion
No. 41752.
April 3, 1961.
1. Evidence — hearsay — self-serving declarations — notations made by insured during his lifetime on life insurance premium notices inadmissible.
In action on life policy, certain monthly premium notices sent to insured in his lifetime and on which he had noted what purported to be dates on which monthly premiums were remitted were hearsay and self-serving declarations and were inadmissible.
Headnote as approved by McGehee, C.J.
APPEAL from the Circuit Court of Simpson County; HOMER CURRIE, Judge.
Heidelberg, Woodliff, Castle Franks, Jackson, for appellant.
I. The lower court erred in refusing appellant's request for a peremptory instruction. Jakup v. Lewis Grocery Co., 190 Miss. 444, 200 So. 597.
A. The lower court erred in admitting hearsay evidence. Associates Discount Corp. v. Rendered (Mo.), 199 S.W.2d 56; Browning v. Hinerman (Texas), 224 S.W. 236; Carter v. Catchings (Miss.), 48 So. 515; Chicago, St. L. N.O.R. Co. v. Provine, 61 Miss. 288; First Nat. Bank v. Owen, 177 Miss. 339, 171 So. 4; Hearon v. Jackson (Texas), 109 S.W.2d 230; Horine v. New York L. Ins. Co., 27 Ky. Law Rep. 893, 87 S.W. 274; Jenkins v. Philips, 182 Ga. 477, 185 S.E. 812; Lagrone v. Helman, 233 Miss. 654, 103 So.2d 365; Maryland Casualty Co. v. Davis (Texas), 181 S.W.2d 107; Provident Sav. Life Assur. Soc. v. Whayne's Admr., 29 Ky. Law Rep. 160, 93 S.W. 1049; Rawlings v. Prudential Ins. Co. of America, 256 App. Div. 284, 9 N.Y.S.2d 979; Re Purdy's Will, 73 N.Y.S.2d 38; Skinner v. Reinhardt, 108 N.J. Eq. 24, 153 A. 632; Sovereigh Camp W.O.W. v. McClure, 176 Miss. 536, 168 So. 611; Talbot, Admr. v. Hathaway, 113 Maine 324, 93 A. 834, 1 A.L.R. 772; Thomson v. Thomson, 156 F.2d 581; Annos. 68 A.L.R. 692, 93 A.L.R. 413, 431, 103 A.L.R. 1501, 1508; 20 Am. Jur., Secs. 558, 1052 pp. 470, 898, 91 pocket part; 31 C.J.S., Secs. 194, 216a pp. 930, 948; 3 Jones on Evidence, Sec. 334 p. 631.
II. The lower court erred in failing to declare a mistrial because of comments upon the evidence and the weight of the evidence made by the trial judge. Coffin v. Brown, 94 Md. 190, 50 A. 567; D'Antoni v. Teche Lines, 163 Miss. 668, 143 So. 415; French v. Sale, 63 Miss. 386; Harrison v. Gatewood, 211 Miss. 121, 51 So.2d 59; Louisville, N.O. T.R. Co. v. Whitehead, 71 Miss. 451, 15 So. 890; Potera v. City of Brookhaven, 95 Miss. 774, 49 So. 617; Sivley v. Sivley, 96 Miss. 137, 51 So. 457; Williams v. State, 32 Miss. 389; Sec. 1530, Code 1942; 53 Am. Jur., Sec. 597 p. 472.
III. The lower court erred in visiting unwarranted abuse on counsel for appellant in the presence of the jury. Cone v. Cone (Fla.), 68 So.2d 886; Giglio v. Valdez (Fla.), 114 So.2d 305; Hansen v. St. Paul City R. Co. (Minn.), 43 N.W.2d 260; Hays v. Viscome (Cal.), 264 P.2d 173; In re Parkside Housing Project, Conner Warren Ave., City of Detroit v. Vandenbroker, 290 Mich. 582, 287 N.W. 571; Annos. 62 A.L.R. 2d 166, 176, 253; 53 Am. Jur., Sec. 88 p. 82.
IV. The lower court erred in overruling appellant's motion for a new trial, in that the verdict of the jury is manifestly contrary to the law and overwhelming weight of the evidence. Wayne County Mfg. Co. v. Shirley (Miss.), 15 So.2d 624.
V. The lower court erred in entering a judgment in the amount of $6,959.17.
J.W. Walker, Mendenhall; Satterfield, Shell, Williams Buford, Jackson, for appellee.
I. The trial court properly refused the request of appellant for a peremptory instruction. Roberts v. Interstate Life Acc. Ins. Co., 232 Miss. 134, 98 So.2d 632; Stoner v. Colvin, 236 Miss. 735, 110 So.2d 920.
II. The writing of the decedent was properly admitted. Izard v. Mikell, 173 Miss. 770, 163 So. 498; Plant Flour Mills v. Sanders Ellis, 172 Miss. 539, 157 So. 713; Stonewall Life Ins. Co. v. Cooke, 165 Miss. 619, 144 So. 217; United States F. G. Co. v. Yost, 183 Miss. 65, 183 So. 263; Williams v. Reserve Life Ins. Co., 223 Miss. 698, 78 So.2d 794; 31 C.J.S., Sec. 59 p. 239.
III. A mistrial was properly denied. Bumpus v. State, 166 Miss. 276, 144 So. 897; Coffin v. Brown, 94 Md. 190, 50 A. 567; D'Antoni v. Teche Lines, 163 Miss. 668, 143 So. 415; French v. Sale, 63 Miss. 386; Hansen v. St. Paul City R. Co. (Minn.), 43 N.W.2d 260; Harrison v. Gatewood, 211 Miss. 121, 51 So.2d 59; Louisville, N.O. T.R. Co. v. Whitehead, 71 Miss. 451, 15 So. 890; Potera v. City of Brookhaven, 95 Miss. 774, 49 So. 617; Sivley v. Sivley, 96 Miss. 37, 51 So. 457.
IV. The motion for a new trial was properly overruled. New York Life Ins. Co. v. Nessossis, 189 Miss. 414, 196 So. 766.
V. The amount of judgment was proper. Lumbermen's Mutual Cas. Co. v. Broadus, 237 Miss. 387, 115 So.2d 130; New York Life Ins. Co. v. Nessossis, supra.
(Hn 1) It is necessary to reverse and remand the verdict and judgment rendered in favor of the appellee in this case because of the admission in evidence, over the objection of the appellant Insurance Company, certain monthly premium notices sent to the insured in his lifetime and whereon he had noted what purports to have been the date on which the monthly premium was remitted. These several exhibits to the testimony of the appellee were hearsay and constituted self-serving declarations.
Due to the confusion in the record as to whether or not the insured actually paid all of the monthly premiums under the policy which became due between the date of the issuance thereof on August 3, 1957, and November 28, 1958, we are unable to determine whether either the appellant or the appellee is entitled to a final judgment here, and therefore the case must be reversed on account of the error in the admission of the said hearsay evidence and self-serving statements.
Then, too, it is indicated by the record that the insured paid one or more premiums in cash and the person in the Jackson office who may have received the premium was not introduced as a witness. For instance, one receipt for the August 3, 1957, premium is signed by a person who is shown not to be presently in the employ of the appellant Insurance Company but was not shown to be unavailable as a witness. It also appears from the record that the insured wrote the appellant Insurance Company on September 13, 1958, that he paid the July 1958 premium to the Company's Jackson manager, Mr. H.A. Moak, in cash and the record shows that Mr. Moak was still employed by the Company for some time after the death of the insured which occurred on November 28, 1958, and Mr. Moak was not introduced as a witness.
Therefore, for the reasons hereinbefore stated and due to the confusion in the record as to whether or not the policy lapsed for the nonpayment of the premium due on October 13, 1958, we have concluded to reverse and remand the case for another trial.
Reversed and remanded.
Kyle, Arrington, Ethridge, and Rodgers, JJ., concur.