Under Rev.Stat. § 921, a court of the United States may order
actions against several insurers of the same life in which the
defense is the same to be consolidated for trial against their
objections.
The consolidation for trial, under Rev.Stat. § 921, of actions
against several defendants does not impair the right of each to
three peremptory challenges under § 819.
The intention of a person, when material, may be proved by
contemporaneous declarations in his letters written under
circumstances precluding a suspicion of misrepresentation.
Upon the question whether a person left a certain place with a
certain other person, letters written and mailed by him at that
place to his family shortly before the time when other evidence
tends to show that he left the place, and stating his intention to
leave it with that person, are competent evidence of such
intention.
On July 13, 1880, Sallie E. Hillmon, a citizen of Kansas,
brought an action against the Mutual Life Insurance Company, a
corporation of New York, on a policy of insurance, dated December
10, 1878, on the life of her husband, John W. Hillmon, in the sum
of $10,000, payable to her within sixty days after notice and proof
of his death. On the same day, the plaintiff brought two other
actions, the one against the New York Life Insurance Company, a
corporation of New York, on two similar policies of life insurance,
dated, respectively, November 30, 1878, and December 10, 1878, for
the sum of
Page 145 U. S. 286
$5,000 each and the other against the Connecticut Mutual Life
Insurance Company, a corporation of Connecticut, on a similar
policy, dated March 4, 1879, for the sum of $5,000.
In each case, the declaration alleged that Hillmon died on March
17, 1879, during the continuance of the policy, but that the
defendant, though duly notified of the fact, had refused to pay the
amount of the policy or any part thereof, and the answer denied the
death of Hillmon and alleged that he, together with John H. Brown
and divers other persons, on or before November 30, 1878,
conspiring to defraud the defendant, procured the issue of all the
policies, and afterwards, in March and April, 1879, falsely
pretended and represented that Hillmon was dead, and that a dead
body which they had procured was his, whereas in reality he was
alive and in hiding.
On June 14, 1882, the following order was entered in the three
cases:
"It appearing to the court that the above-entitled actions are
of like nature, and relative to the same question, and to avoid
unnecessary cost and delay, and that it is reasonable to do so, it
is ordered by the court that said actions be, and the same are
hereby, consolidated for trial."
To this order the defendants excepted.
On February 29, 1888, after two trials at which the jury had
disagreed, the three cases came on for trial under the order of
consolidation. Each of the defendants moved that the order be set
aside, and each case tried separately, but the court overruled the
motion and directed that, pursuant to that order, the cases should
be tried as one cause, and to this each defendant excepted.
At the impaneling of the jury, each defendant claimed the right
to challenge peremptorily three jurors. But the court ruled that,
the cases having been consolidated, the defendants were entitled to
three peremptory challenges only, and after each defendant had
peremptorily challenged one juror, ruled that none of the
defendants could so challenge any other jurors, and to these
rulings each defendant excepted.
At the trial, plaintiff introduced evidence tending to show that
on or about March 5, 1879, Hillmon and Brown left Wichita, in the
State of Kansas, and traveled together through
Page 145 U. S. 287
southern Kansas in search of a site for a cattle ranch; that on
the night of March 18, while they were in camp at a place called
"Crooked Creek," Hillmon was killed by the accidental discharge of
a gun; that Brown at once notified persons living in the
neighborhood, and that the body was thereupon taken to a
neighboring town, where, after an inquest, it was buried. The
defendants introduced evidence tending to show that the body found
in the camp at Crooked Creek on the night of March 18th was not the
body of Hillmon, but was the body of one Frederick Adolph Walters.
Upon the question whose body this was there was much conflicting
evidence, including photographs and descriptions of the corpse, and
of the marks and scars upon it, and testimony to its likeness to
Hillmon and to Walters.
The defendants introduced testimony that Walters left his home
at Fort Madison, in the State of Iowa, in March, 1878, and was
afterwards in Kansas in 1878, and in January and February, 1879;
that during that time, his family frequently received letters from
him, the last of which was written from Wichita, and that he had
not been heard from since March, 1879. The defendants also offered
the following evidence:
Elizabeth Rieffenach testified that she was a sister of
Frederick Adolph Walters, and lived at Fort Madison, and thereupon,
as shown by the bill of exceptions, the following proceedings took
place:
"Witness further testified that she had received a letter
written from Wichita, Kansas, about the 4th or 5th day of March,
1879, by her brother Frederick Adolph; that the letter was dated at
Wichita, and was in the handwriting of her brother; that she had
searched for the letter, but could not find the same, it being
lost; that she remembered and could state the contents of the
letter."
"Thereupon the defendants' counsel asked the question, 'state
the contents of that letter,' to which the plaintiff objected, on
the ground that the same is incompetent, irrelevant, and hearsay.
The objection was sustained, and the defendants duly excepted. The
following is the letter as stated by witness: "
Page 145 U. S. 288
"Wichita, Kansas,"
"March 4th or 5th or 3d or 4th -- I don't know -- 1879"
"Dear Sister and All: I now in my usual style drop you a few
lines to let you know that I expect to leave Wichita on or about
March the 5th with a certain Mr. Hillmon, a sheep trader, for
Colorado, or parts unknown to me. I expect to see the country now.
News are of no interest to you, as you are not acquainted here. I
will close with compliments to all inquiring friends. Love to
all."
"I am truly your brother,"
"FRED. ADOLPH WALTERS"
Alvina D. Kasten testified that she was twenty-one years of age,
and resided in Fort Madison; that she was engaged to be married to
Frederick Adolph Walters; that she last saw him on March 24, 1878,
at Fort Madison; that he left there at that time, and had not
returned; that she corresponded regularly with him, and received a
letter about every two weeks until March 3, 1879, which was the
last time she received a letter from him; that this letter was
dated at Wichita, March 1, 1879, and was addressed to her at Fort
Madison, and the envelope was postmarked "Wichita, Kansas, March 2,
1879;" and that she had never heard from or seen him since that
time.
The defendants put in evidence the envelope with the postmark
and address, and thereupon offered to read the letter in evidence.
The plaintiff objected to the reading of the letter. The court
sustained the objection, and the defendants excepted.
This letter was dated "Wichita, March 1, 1879," was signed by
Walters, and began as follows:
"Dearest Alvina: Your kind and ever welcome letter was received
yesterday afternoon about an hour before I left Emporia. I will
stay here until the forepart of next week, and then will leave here
to see a part of the country that I never expected to see when I
left home, as I am going with a man by the name of Hillmon, who
intends, to start a sheep ranch, and, as he promised me more wages
than I could make at anything else, I concluded to take it, for a
while at least,
Page 145 U. S. 289
until I strike something better. There is so many folks in this
country that have got the Leadville fever, and if I could not of
got the situation that I have now I would have went there myself;
but as it is at present ,I get to see the best portion of Kansas,
Indian Territory, Colorado, and Mexico. The route that we intend to
take would cost a man to travel from $150 to $200, but it will not
cost me a cent; besides, I get good wages. I will drop you a letter
occasionally until I get settled down. Then I want you to answer
it."
Rulings upon other questions of evidence excepted to at the
trial are not reported because not passed upon by this Court.
The court, after recapitulating some of the testimony
introduced, instructed the jury as follows:
"You have perceived from the very beginning of the trial that
the conclusion to be reached must practically turn upon one
question of fact, and all the large volume of evidence, with its
graphic and varied details, has no actual significance save as the
facts established thereby may throw light upon and aid you in
answering the question whose body was it that on the evening of
March 18, 1879, lay dead by the campfire on Crooked Creek? The
decision of that question decides the verdict you should
render."
The jury, being instructed by the court to return a separate
verdict in each case, returned verdicts for the plaintiff against
the three defendants respectively for the amounts of their policies
and interest, upon which separate judgments were rendered. The
defendants sued out four writs of error, one jointly in the three
cases as consolidated and one in each case separately.
Page 145 U. S. 292
MR. JUSTICE GRAY, after stating the case as above, delivered the
opinion of the court.
The order of the circuit court that the three actions be
consolidated for trial, because they appeared to the court to be of
like nature and relative to the same question, because it would
avoid unnecessary cost and delay, and because it was reasonable to
do so was within the discretionary power of the court, under § 921
of the Revised Statutes, which provides, in substantial accordance
with the Act of July 22, 1813, c. 14, § 3, 3 Stat. 21, that
"when causes of a like nature or relative to the same question
are pending before a court of the United States or of any
territory, the court may make such orders and rules concerning
proceedings therein as may be conformable to the usages of courts
for avoiding unnecessary costs or delay in the administration of
justice, and may consolidate said causes when it appears reasonable
to do so."
The consolidation rule, introduced in England by Lord Mansfield
to avoid the expense and delay attending the trial of a
multiplicity of actions upon the same question arising under
different policies of insurance, enabled the several insurers to
have proceedings stayed in all actions except one, upon undertaking
to be bound by the verdict in that one, to admit all facts not
meant to be seriously disputed, and not to file a bill in equity or
bring a writ of error, and was considered as a favor to the
defendants, and insurers under different policies could not obtain
such a rule without the plaintiff's consent.
Page 145 U. S. 293
Tidd's Practice (9th ed.) 614, 615;
McGregor v.
Horsfall, 3 M. & W. 320. The English practice appears to
have been followed in early times in New York.
Camman v. New
York Ins. Co., 1 Caines 114, Coleman & Caines 188;
Thompson v. Shepherd, 9 Johns. 262. The later cases in New
York, cited at the bar, were governed by statute.
Brewster v.
Stewart, 3 Wend. 441;
Mayor v. Mayor, 64 How.Pract.
230.
Where the English consolidation rule has not been adopted, the
American courts, state and federal, have exercised the authority of
ordering several actions by one plaintiff against different
defendants to be tried together whenever the defense is the same
and unnecessary delay and expense will be thereby avoided.
Den
v. Kimble, 9 N.J.Law 335;
Worley v. Glentworth, 10
N.J.Law 241;
Witherlee v. Ocean Ins. Co., 24 Pick. 67;
Wiede v. Insurance Cos., 3 Chicago Legal News 353;
Andrews v. Spear, 4 Dillon 470;
Keep v. Indianapolis
& St. Louis Railroad, 10 F. 454; 1 Thompson on Trials §
210. The learning and research of counsel have produced no instance
in this country in which such an order, made in the exercise of the
discretionary power of the court, unrestricted by statute, has been
set aside on bill of exceptions or writ of error.
But although the defendants might lawfully be compelled at the
discretion of the court to try the cases together, the causes of
action remained distinct, and required separate verdicts and
judgments, and no defendant could be deprived without its consent
of any right material to its defense, whether by way of challenge
of jurors or of objection to evidence, to which it would have been
entitled if the cases had been tried separately. Section 819 of the
Revised Statutes provides that in all civil cases,
"each party shall be entitled to three peremptory challenges,
and in all cases where there are several defendants or several
plaintiffs the parties on each side shall be deemed a single party
for the purposes of all challenges under this section."
Under this provision, defendants sued together upon one cause of
action would be entitled to only three peremptory challenges in
all. But defendants in different actions cannot be deprived of
their several challenges
Page 145 U. S. 294
by the order of the court, made for the prompt and convenient
administration of justice, that the three cases shall be tried
together. The denial of the right of challenge, secured to the
defendants by the statute, entitles them to a new trial.
There is, however, one question of evidence so important, so
fully argued at the bar, and so likely to arise upon another trial
that it is proper to express an opinion upon it.
This question is of the admissibility of the letters written by
Walters on the first days of March, 1879, which were offered in
evidence by the defendants and excluded by the court. In order to
determine the competency of these letters, it is important to
consider the state of the case when they were offered to be
read.
The matter chiefly contested at the trial was the death of John
W. Hillmon, the insured, and that depended upon the question
whether the body found at Crooked Creek on the night of March 18,
1879, was his body or the body of one Walters.
Much conflicting evidence had been introduced as to the identity
of the body. The plaintiff had also introduced evidence that
Hillmon and one Brown left Wichita, in Kansas, on or about March 5,
1879, and traveled together through southern Kansas in search of a
site for a cattle ranch, and that on the night of March 18th, while
they were in camp at Crooked Creek, Hillmon was accidentally
killed, and that his body was taken thence and buried. The
defendants had introduced evidence, without objection, that Walters
left his home and his betrothed in Iowa in March, 1878, and was
afterwards in Kansas until March, 1879; that during that time, he
corresponded regularly with his family and his betrothed; that the
last letters received from him were one received by his betrothed
on March 3 and postmarked at "Wichita, March 2," and one received
by his sister about March 4 or 5 and dated at Wichita a day or two
before, and that he had not been heard from since.
The evidence that Walters was at Wichita on or before March 5,
and had not been heard from since, together with the evidence to
identify as his the body found at Crooked
Page 145 U. S. 295
Creek on March 18, tended to show that he went from Wichita to
Crooked Creek between those dates. Evidence that just before March
5 he had the intention of leaving Wichita with Hillmon would tend
to corroborate the evidence already admitted, and to show that he
went from Wichita to Crooked Creek with Hillmon. Letters from him
to his family and his betrothed were the natural, if not the only
attainable, evidence of his intention.
The position taken at the bar that the letters were competent
evidence within the rule stated in
Nicholls
v. Webb, 8 Wheat. 326,
21 U. S. 337,
as memoranda made in the ordinary course of business, cannot be
maintained, for they were clearly not such.
But upon another ground suggested, they should have been
admitted. A man's state of mind or feeling can only be manifested
to others by countenance, attitude, or gesture, or by sounds or
words, spoken or written. The nature of the fact to be proved is
the same, and evidence of its proper tokens is equally competent to
prove it, whether expressed by aspect or conduct, by voice or pen.
When the intention to be proved is important only as qualifying an
act, its connection with that act must be shown in order to warrant
the admission of declarations of the intention. But whenever the
intention is of itself a distinct and material fact in a chain of
circumstances, it may be proved by contemporaneous oral or written
declarations of the party.
The existence of a particular intention in a certain person at a
certain time being a material fact to be proved, evidence that he
expressed that intention at that time is as direct evidence of the
fact as his own testimony that he then had that intention would be.
After his death, these can hardly be any other way of proving it,
and while he is still alive, his own memory of his state of mind at
a former time is no more likely to be clear and true than a
bystander's recollection of what he then said, and is less
trustworthy than letters written by him at the very time and under
circumstances precluding a suspicion of misrepresentation.
The letters in question were competent not as narratives of
Page 145 U. S. 296
facts communicated to the writer by others, nor yet as proof
that he actually went away from Wichita, but as evidence that,
shortly before the time when other evidence tended to show that he
went away, he had the intention of going, and of going with
Hillmon, which made it more probable both that he did go and that
he went with Hillmon than if there had been no proof of such
intention. In view of the mass of conflicting testimony introduced
upon the question whether it was the body of Walters that was found
in Hillmon's camp, this evidence might properly influence the jury
in determining that question.
The rule applicable to this case has been thus stated by this
Court:
"Wherever the bodily or mental feelings of an individual are
material to be proved, the usual expressions of such feelings are
original and competent evidence. Those expressions are the natural
reflexes of what it might be impossible to show by other testimony.
If there be such other testimony, this may be necessary to set the
facts thus developed in their true light and to give them their
proper effect. As independent, explanatory, or corroborative
evidence, it is often indispensable to the due administration of
justice. Such declarations are regarded as verbal acts, and are as
competent as any other testimony, when relevant to the issue. Their
truth or falsity is an inquiry for the jury."
Insurance Co. v.
Mosley, 8 Wall. 397,
75 U. S.
404-405.
In accordance with this rule, a bankrupt's declarations, oral or
by letter at or before the time of leaving or staying away from
home, as to his reason for going abroad, have always been held by
the English courts to be competent in an action by his assignees
against a creditor as evidence that his departure was with intent
to defraud his creditors, and therefore an act of bankruptcy.
Bateman v. Bailey, 5 T.R. 512;
Rawson v. Haigh, 9
J.B.Moore 217, 2 Bing. 99;
Smith v. Cramer, 1 Scott 541, 1
Bing.N.C. 585.
The highest courts of New Hampshire and Massachusetts have held
declarations of a servant at the time of leaving his master's
service to be competent evidence in actions between third persons
of his reasons for doing so.
Hadley v. Carter,
Page 145 U. S. 297
8 N.H. 40;
Elmer v. Fessenden, 151 Mass. 359. And the
Supreme Court of Ohio has held that for the purpose of proving that
a person was at a railroad station intending to take passage on a
train, previous declarations made by him at the time of leaving his
hotel were admissible.
Railroad v. Herrick, 29 N.E. 1052.
See also Jackson v. Boneham, 15 Johns. 226;
Gorham v.
Canton, 5 Greenl. 226;
Kilburn v. Bennett, 3 Metc.
199;
Lund v. Tyngsborough, 9 Cush. 36.
In actions for criminal conversation, letters by the wife to her
husband or to third persons are competent to show her affection
toward her husband and her reasons for living apart from him, if
written before any misconduct on her part, and if there is no
ground to suspect collusion.
Trelawney v. Colman, 2 Stark.
191, and 1 B. & Ald. 90;
Willis v. Bernard, 5 Car.
& P. 342, and 1 Moore & Scott 584, 8 Bing. 376; 1
Greenl.Ev. § 102. So letters from a husband to a third person
showing his state of feeling, affection, and sympathy for his wife
have been held by this Court to be competent evidence, bearing on
the validity of the marriage when the legitimacy of their children
is in issue.
Gaines v.
Relf, 12 How. 472,
53 U. S. 520,
53 U. S.
534.
Even in the probate of wills, which are required by law to be in
writing, executed and attested in prescribed forms, yet where the
validity of a will is questioned for want of mental capacity or by
reason of fraud and undue influence, or where the will is lost and
it becomes necessary to prove its contents, written or oral
evidence of declarations of the testator before the date of the
will has been admitted, in Massachusetts and in England, to show
his real intention as to the disposition of his property, although
there has been a difference of opinion as to the admissibility for
such purposes of his subsequent declarations.
Shailer v.
Bumstead, 99 Mass. 112;
Sugden v. St. Leonards, 1
P.D. 154;
Woodward v. Goulstone, 11 App.Cas. 469, 478,
484, 486.
In
Shailer v. Bumstead, upon the competency of evidence
offered to show that a will propounded for probate
"was not the act of one possessed of testamentary capacity, or
was
Page 145 U. S. 298
obtained by such fraud and undue influence as to subvert the
real intentions and will of the maker,"
Mr. Justice Colt said:
"The declarations of the testator accompanying the act must
always be resorted to as the most satisfactory evidence to sustain
or defend the will whenever this issue is presented. So it is
uniformly held that the previous declarations of the testator,
offered to prove the mental facts involved, are competent.
Intention, purpose, mental peculiarity and condition are mainly
ascertainable through the medium afforded by the power of language.
statements and declarations, when the state of the mind is the fact
to be shown, are therefore received as mental acts or conduct."
99 Mass. 120.
In
Sugden v. St. Leonards, which arose upon the probate
of the lost will of Lord Chancellor St. Leonards, the English Court
of Appeal was unanimous in holding oral as well as written
declarations made by the testator before the date of the will to be
admissible in evidence. Lord Chief Justice Cockburn said:
"I entertain no doubt that prior instructions, or a draft
authenticated by the testator, or verbal declarations of what he
was about to do, though of course, not conclusive evidence, are yet
legally admissible as secondary evidence, of the contents of a lost
will."
1 P.D. 226. Sir George Jessel, M.R., said:
"It is not strictly evidence of the contents of the instrument,
it is simply evidence of the intention of the person who afterwards
executes the instrument. It is simply evidence of probability -- no
doubt of a high degree of probability in some cases, and of a low
degree of probability in others. The cogency of the evidence
depends very much on the nearness in point of time of the
declaration of intention to the period of the execution of the
instrument."
Id., 242. Lord Justice Mellish said:
"The declarations which are made before the will are not, I
apprehend, to be taken as evidence of the contents of the will
which is subsequently made; they obviously do not prove it, and
wherever it is material to prove the state of a person's mind, or
what was passing in it and what were his intentions, there you may
prove what he said, because that is the only means by which you can
find out what his intentions were."
Id., 251.
Page 145 U. S. 299
Upon an indictment of one Hunter for the murder of one Armstrong
at Camden, the Court of Errors and Appeals of New Jersey
unanimously held that Armstrong's oral declarations to his son at
Philadelphia on the afternoon before the night of the murder, as
well as a letter written by him at the same time and place to his
wife, each stating that he was going with Hunter to Camden on
business, were rightly admitted in evidence. Chief Justice Beasley
said:
"In the ordinary course of things, it was the usual information
that a man about leaving home would communicate for the convenience
of his family, the information of his friends, or the regulation of
his business. At the time it was given, such declarations could, in
the nature of things, mean harm to no one. He who uttered them was
bent on no expedition of mischief or wrong, and the attitude of
affairs at the time entirely explodes the idea that such utterances
were intended to serve any purpose but that for which they were
obviously designed. If it be said that such notice of an intention
of leaving home could have been given without introducing in it the
name of Mr. Hunter, the obvious answer to the suggestion, I think,
is that a reference to the companion who is to accompany the person
leaving is as natural a part of the transaction as is any other
incident or quality of it. If it is legitimate to show by a man's
own declarations that he left his home to be gone a week, or for a
certain destination, which seems incontestable, why may it not be
proved in the same way that a designated person was to bear him
company? At the time the words were uttered or written, they
imported no wrongdoing to anyone, and the reference to the
companion who was to go with him was nothing more, as matters then
stood, than an indication of an additional circumstance of his
going. If it was in the ordinary train of events for this man to
leave word or to state where he was going, it seems to me it was
equally so for him to say with whom he was going."
Hunter v. State, 40 N.J.Law 495, 534, 536-538.
Upon principle and authority, therefore, we are of opinion that
the two letters were competent evidence of the intention of Walters
at the time of writing them, which was a material
Page 145 U. S. 300
fact bearing upon the question in controversy, and that for the
exclusion of these letters, as well as for the undue restriction of
the defendants' challenges, the verdicts must be set aside and a
new trial had.
As the verdicts and judgments were several, the writ of error
sued out by the defendants jointly was superfluous, and may be
dismissed without costs, and upon each of the writs of error sued
out by the defendants severally the order will be:
Judgment reversed, and case remanded to the circuit court
with directions to set aside the verdict and to order a new
trial.
