Way v. Billings

By the Court, Martin, J. Tlie testimony exhibited on the trial of this cause was sufficient to prove the existence of the Marshall Mutual Insurance Company; (See Cahill vs. Kal. Mut. Ins. Co., 2 Doug., 124; Henriques vs. Dutch West India Co., 2 Ld. Raym, 1535; Den vs. Van Hauten, 5 Halst, 270; Congreg. Soc. vs. Perry, 6. N. Hamp. 164; All Saints’ Church vs. Lovett, 1 Hall, N. Y., 191; Johns vs. Farm, & Mech’s. Bank, 2 Blackf., 367;) and also, the application of the defendant for insurance of his property, and the execution and delivery of the premium note. The admission of the defendant in that note, of the policy, its number and date, was sufficient prima facie evidence of its existence for the purposes of the trial, and the plaintiff could not be compelled by any known rule of evidence to prove the actual issuing, and contents of such policy, after such admission, in the absence of any special pica, or notice of defense for want of consideration. But conceding the necessity of proving the contents of the policy, and its actual receipt by the defendant, the plaintiff was clearly entitled to answers to the questions propounded by him to the defendant. He had given notice for its production upon the trial, or that parol proof of its contents would be given. Failing in procuring the production of the policy, he made an affidavit as prescribed by § 100 of chapter 102 of the revised statutes, that certain facts material to the issue in this cause were within the knowledge of the defendant, and that there was no competent witness, whose testimony he could procure, by whom such facts could be proved. “Thut the said facts so in the knowledge of said defendant are” (in .the language of the affidavit-,) “that the policy of insurance mentioned in the declaration in this case, numbered 641, was issued, and received by the said defendant-, and the contents of such policy, and the policy itself.” Under this affidavit the plaintiff was entitled to examine the defendant as to the existence of the policy, its receipt by him, its contents, and to its production, if in his possession or subject to his control. In short, he had all the right which a Court of [400] Equity could have afforded him upon a bill of discovery. The defendant was accordingly sworn, and having testified that he made the application for a policy of insurance, upon which it was claimed the policy in question issued, he was asked, “Did you ever receive a policy of insurance from the Marshall Mutual Insurance Company, numbered 641?” To this question the witness replied; “I don’t recollect the number’’ Shifting the inquiry, then, so as to attain the object of the examination, the witness was then asked the following questions: 1. Did you ever receive a policy of insurance issued by the Marshall Mutual Insurance Company ? ” 2. Have you in your possession a policy of insurance issued by the Marshall Mutual Insurance Company ? 3. Have you in Court a policy of insurance issued by the Marshall Mutual Insurance Company ? 4. Will you look upon the policy of insurance in your possession and .state whether it is numbered 641 ? Each of these questions was met by objections of the defendant’s ■counsel, and the objections sustained by the Court. It is difficult to conceive upon what grounds these questions were prohibited. The answer of the witness, defendant, to the question whether he ever received a policy of insurance from the company, numbered 641, was so clearly evasive and uncandid, that the Court would not only have been warranted, but was required from regard to the rights of the plaintiff and respect to its own authority, to permit the broadest latitude of inquiry necessary to elicit the truth, and effectuate the objects of the law. To permit a witness to avoid a discovery by so palpable an evasion would render Courts of justice utterly incompetent for the purposes of their creation. We know of no immunity to the defendant in such cases, that would not attach to any witness, and a reluctant witness may always be pursued with questions calculated to withdraw him from his defiant position. But irrespective of these views, the questions were clearly competent. The plaintiff had a right to examine the defendant generally as to the fact of his having received a policy from the company, and every particular respecting it. Suppose upon such an examination the defend [401] ant had testified to the receipt of a policy about the time of the transaction, but that he had lost it, and could not state its number or contents. Woidd the plaintiff have been estopped by such answers from pursuing the inquiry further to ascertain whether it was executed under this application, for insurance, or would not a Court, or a jury, were one empannelled, have been authorized, and indeed bound to conclude that the policy lost, was the one sought by the plaintiff ? Most assuredly so. The error of the Court below in this particular, evidently crippled the plaintiff in the further progress of the cause, and many of the questions subsequently raised may he clearly traced to it. It becomes therefore unnecessary to consider the remaining questions, and it must be certified that the non-suit should be set aside and a new trial granted. Certified accordingly.