Thompson v. Bankers Mutual Casualty Insurance

Hallam, J. On May 19, 1912, the body of Lee Thompson was found lying by the roadside under an overturned automobile which he had been driving. ITe held a policy of accident insurance issued by defendant in which plaintiff was named as beneficiary. Plaintiff brought suit on this policy and recovered a verdict. Defendant appeals. 1. The policy provided that defendant should not be liable for any accidental injuries received by deceased while intoxicated. De [476] fendant claims that the evidence conclusively shows that deceased was intoxicated at the time of his death. The story of deceased’s movements on the night of the accident, so far as they are known, are in general as follows: Deceased lived at Lansing, about six miles north of Austin. Late in the afternoon, of May 18, he took his automobile and went to Austin on an errand, returning early in the evening. lie then spent some time in the barn of one Fred Leek, at Lansing, and drank some liquor there. He then again went to Austin with a party of men, returning to Lansing about midnight, but passing straight through the town to the north. Nothing more was seen of him until three o’clock in the morning, when three farmers living four miles northeast of Lansing found deceased with his automobile stalled in the mud by the roadside, and they helped him out. The party then consisted of deceased, Leek, and one Herbert Hunt. They were then within one and one-half miles of Hunt’s home but did not go there. Instead, they started to return to Austin. As they passed through Lansing, Leek left the car and went home. Hunt alone remained with deceased. As they came near Austin the road turns to the right. At this turn the car went over an embankment on the left side of the road, and deceased and Hunt were pinned beneath the car. Hunt was rescued alive, but deceased was dead when help came. The circumstances point strongly to a night of debauch. Deceased had been out most of the night. He was given , to drinking to excess. So was Hunt. Hunt was admittedly intoxicated on this night. They had both beer and whisky in the automobile. On the other hand, there is the direct testimony of a large number of witnesses who saw deceased at several times during the night. The decided weight of this direct testimony is to the effect, that deceased was in fact sober. The three farmers, who were the last witnesses to see him, gave unqualified testimony to this effect. Two juries have passed upon the case and each found that deceased was sober. The last verdict has the approval of the trial court. The burden of proving that the policy was avoided by the intoxication of deceased was upon the defendant. Lockway v. Modern Woodmen of America, 121 Minn. 170, 141 N. W. 1. It is clear [477] -tliat tlie verdict is not clearly or palpably against tbe evidence, and we shall not disturb it. 2. Dr. Pierson, tbe coroner, was called as a witness for tbe plain-stiff. He arrived at tbe scene of tbe accident soon after tbe automobile was removed from deceased. When be arrived, deceased was lying on tbe ground face downward and witness saw a mark across ■the back of bis coat as if something had rested upon it. Tbe witness .stated that be ascertained tbe cause of death, and was permitted to testify that- death was caused by suffocation due to the pressure of tbe heavy automobile upon bis body. Objection is made that it appears from tbe doctor’s testimony that bis opinion is founded in part on what others told him as to conditions that existed before be arrived. Undoubtedly an expert witness should not be permitted to .give an opinion without giving tbe facts upon which tbe opinion is based, and there should be competent evidence in tbe case tending 'to prove such facts. Miller v. St. Paul City Ry. Co. 62 Minn. 216, 64 N. W. 554; Webb v. Minneapolis Street Ry. Co. 107 Minn. 282, 119 N. W. 955. But we think it clear from all tbe evidence of Dr. Pierson that tbe hearsay report upon which be formed bis opinion was the report that deceased when found was lying upon tbe ground with tbe automobile upon him, and that tbe mark which witness saw .across bis back was made by tbe pressure of the automobile seat. These facts were all in evidence and an opinion might properly be predicated upon them. 3. It is contended tbe court erred in permitting an automobile' •expert to testify that there was a “blow out” in tbe left front tire iof the automobile, and that tbe effect of such a “blow out” would be to cause the car to move toward tbe side of tbe disabled tire. The purpose of tbe testimony was to account for the fact of tbe automobile going over tbe embankment. Defendant was contending tbe ■automobile went in a straight course over tbe bank without attempting to turn the corner, and u>'ged that fact as ground for the belief ■that deceased was intoxicated. Plaintiff contended that deceased bad started to turn bis car around the corner and bad made half .the turn, and this fact and tbe additional fact of tbe “blow out” [478] which would carry the car iu the direction of the bank were urged as accounting for the accident without necessity of resorting to defendant’s theory of intoxication. In other words, the testimony as to the •“blow out” had some tendency to meet and rebut defendant’s theory of the case. The testimony was proper enough. 4. Plaintiff was permitted to show by way of cross-examination of one of defendant’s witnesses that the witness had been convicted upon his own confession of the crime of assault, and to show the nature of the assault, that is, that it consisted in attempting to kiss a married woman. The admission of this evidence is assigned as error. The statute permits this form of impeaching testimony. It provides that “every person convicted of crime shall be a competent witness * * * but his conviction may be proved for the purpose of affecting the weight of his testimony, either by the record or by his cross-examination.” G. S. 1913, § 8504. The statute applies to all crimes. It bars none, whether felonies or petty misdemeanor's, and whether the crime was or was not a crime at common law. In determining whether proof of conviction is admissible there is no room for inquiry as to whether or not the crime is one which affects the weight of the witness’ testimony. State v. Sauer, 42 Minn. 258, 44 N. W. 115; Harding v. Great Northern Ry. Co. 77 Minn. 417, 80 N. W. 358. We do not doubt, however, that it was proper to show the character of the crime of which the witness was convicted. Evidence of conviction of any crime is admissible; nevertheless conviction of some crimes will reflect more on the credibility of a witness than would conviction of others. The nature 'of the offense may, therefore, properly be shown. See State v. Adamson, 43 Minn. 196, 200, 45 N. W. 152. Some claim is made that deceased must have died of heart disease before the automobile capsized, and that death was accordingly not accidental. We find no evidence to require such a conclusion. Order affirmed.