Connecticut Mut. Life Ins. Co. v. Hillmon, 188 U.S. 208 (1903)
Connecticut Mutual Life Insurance Company v. Hillmon
No. 94
Argued November 13-14, 1902
Decided January 2, 1903
188 U.S. 208
CERTIORARI TO THE CIRCUIT COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
Syllabus
Where two cases, brought by the same plaintiff against different defendants, consolidated for trial, each of the defendants is entitled to three peremptory challenges. But the weight of authority is that the right of the plaintiff is not correspondingly multiplied, and that she is entitled to but three. But if the defendants do not exhaust their right to peremptory challenges, they cannot complain that the plaintiff was allowed more than the number to which she was was entitled.
If a witness upon cross-examination is interrogated with regard to an affidavit made by him in direct conflict with his testimony, and the affidavit be subsequently put in evidence by the opposite party without limitation as to its purpose in so doing, it becomes a part of its evidence in the case, and its adversary is entitled to an instruction that such affidavit may be considered as independent evidence to be weighed in connection with the deposition of the witness, and not merely as impeaching his creditability.
Where the defendant in an insurance case relies upon a conspiracy to substitute the dead body of another for that of the insured, and prima facie evidence to that effect had been produced, it is error to exclude evidence of declarations made by the alleged conspirators to third parties, tending to show the plans of the conspirators.
This was an action begun July 13, 1880, by Sallie E. Hillmon, in the Circuit Court of the United States for the District of Kansas, to recover the amount of a policy of insurance ($5,000), issued by the company March 4, 1879, upon the life of John W. Hillmon, her husband, in which the plaintiff was named as beneficiary. Plaintiff made the usual allegations of compliance with the terms of the policy, and averred that the assured had died March 17, 1879, thirteen days after the policy was issued, and that due proofs had been forwarded to the company. Other actions were also brought against the New York Life Insurance Company and the Mutual Life Insurance Company of New York, upon policies of insurance issued by them upon the same life, which actions were subsequently compromised.
Defendant interposed a general denial, and for a special defense set up in substance that, on or before November 30, 1878, John W. Hillmon, John H. Brown, Levi Baldwin, and divers other persons to defendant unknown, fraudulently conspiring to cheat and defraud defendant, procured a large amount of insurance on the life of Hillmon, to-wit: $10,000 in the New York Life, by policy dated November 30, 1878; $10,000 in the Mutual Life, by policy dated December 10, 1878, and $5,000 in the Connecticut Mutual Life, by the policy in suit, dated March 4, 1879; that thereafter, in pursuance of such conspiracy, Hillmon, Brown, and Baldwin falsely represented to defendant and others that said Hillmon had died, and that a certain dead body which they had procured was that of Hillmon, whereas in truth Hillmon "was not and is not dead," but has kept himself concealed under assumed names for the purpose of consummating the conspiracy.
As a third defense, the company set up a release by plaintiff of all her claims against it under the policies.
Actions having been begun upon all three of these policies, an order was entered July 14, 1882, consolidating them for trial. Two trials of the three consolidated cases resulted in disagreements of the jury. On February 29, 1888, judgments in each were rendered for the plaintiff, which, upon writs of error, were reversed by this Court and the cases remanded for a new trial. 145 U.S. 285. The material facts of the case are fully set forth in that report, and will not be here repeated, except so far as they are pertinent to the questions before this Court for consideration. After two more trials of the consolidated cases, which resulted in disagreements of the jury, a compromise was effected between the plaintiff and the New York Life, which was followed by dismissal of the action against that company. Thereafter, and on January 9, 1895, an order previously entered consolidating the two remaining actions for trial was continued in force against the objection of each defendant, and the consolidated cases again came on for trial, resulting in separate judgments November 18, 1899, against both companies. To reverse this, defendant sued out a writ of error from the circuit court of appeals, and upon hearing in that court the judgment was affirmed with one dissent. 107 F. 834. The Mutual Life sued out a similar writ of error, but compromised the case before it was heard in the circuit court of appeals.