On appeal from the Supreme Court.
For the plaintiff-respondent, John F. Ryan.
For the defendant-appellant, Frankel & Frankel (Abraham Frankel, of counsel).
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. The defendant, insurance company, appeals from a judgment in favor of the plaintiff. The disputed issue in this case was whether plaintiff's decedent, Lawrence Iverson, who met his death on March 6th, 1938, died as a result of "bodily injuries effected solely through external, violent and accidental means, of which * * * there is a visible contusion or wound on the exterior of the body * * *." The action was based on a double indemnity insurance policy issued by the defendant to the decedent during his lifetime. The deceased died as a result of being struck by a railroad train while in his automobile on the Silverside Crossing in Monmouth County, New Jersey.
The defendant asserted that the death was not the result of accident but of self-destruction. The jury returned a verdict in favor of the decedent's widow, who was named as beneficiary in the insurance contract.
The defendant insurance company, in its appeal, sets up thirty-four grounds for reversal which challenge the conduct
of the trial in several departments. The first six grounds of appeal argued by the appellant under the first point in its brief will not be considered. The printed transcript of the proceedings in the trial court not only shows no objection to the matters now complained of but indeed an explicit acquiescence by appellant's counsel that the statements made by the trial court were accurate and in complete harmony with the appellant's then viewpoint.
The second point in the brief comprehends three grounds of appeal, namely the thirteenth, fourteenth and fifteenth. These will not be considered since at the trial no objection was lodged against the matters and things now challenged.
Under the third point grounds of appeal numbered eight, nine and twenty-three are argued. As far as the eighth ground of appeal is concerned -- the reception of testimony given by the witness, MacCubbin -- there is no objection to the question in the record and therefore no judicial ruling to review. It is elementary that counsel may not stand mute when testimony is received and later by writing down a ground of appeal ask an appellate court to reverse for reasons not made known to the trial court. Ground of appeal nine asserts error in allowing certain testimony from this witness, and ground twenty-five asserts error in refusing to strike out the testimony. The witness, Mr. MacCubbin, who was successor to the deceased Lawrence Iverson as general manager of the company in which both were employed, was asked whether he saw a memorandum on the diary of the decedent for Monday, March 7th, 1938. The deceased met his death on Sunday, March 6th. Plaintiff's counsel asked what the "notation was." The court allowed the witness to answer subject to motion to strike out the testimony. The objection was that the memorandum was "a self-serving declaration" and further there being no proof as to when the "reminder" was written, the notation was not evidential. In the motion to strike out the answer appellant said "the sole question involved is when that memorandum was made." The evidence indicated that the decedent intended to be in the New York office of his employer on March 7th; the notation "N.Y.O."
was thus interpreted by the witness. Testimony that the memorandum was in the decedent's hand-writing on the diary leaf for March 7th, 1938, was received without objection. In ruling on the matter the court held -- and we think correctly -- that this evidence was a fact or circumstance for the jury's consideration. It is obvious from the testimony of the witness that the diary was in fact a calendar pad for the year 1938, a sort of day-by-day engagement pad. Its pages for earlier days and dates were torn off, presumably by the decedent, although that is a matter of little consequence. The situation was that MacCubbin found this engagement pad a day or two after the decedent's death and that its earlier pages had been discarded. The ground of the objection -- that the memorandum was a "self-serving declaration" -- has no validity whatever. The argument begs the question. It assumes that the decedent did die by his own act and made the notation in question on his desk pad as some evidence that his death would be considered accidental. The second objection to the question was addressed to the possible remoteness of the entry. The desk pad was for the year 1938, so the ...