I am unable to agree with the foregoing opinion and respectfully dissent.
The statement, which is attributed to the agent, Morrison, by the witness Spry, is stated as follows: "I have just covered Otto with a policy, just like I wrote one for you only double the amount." The statement, attributed to Morrison by the witness Denman, is stated as follows: "Mr. Morrison opened the conversation by saying that it was a blessing that he covered Otto Muntz with a policy the day before." The opinion holds that the testimony of Spry is competent as a part of the res gestae, but that the testimony of Denman is incompetent because the statement was not a part of the res gestae but a mere narration of a past transaction.
The opinion cites the case of Fidelity Cas. Co. v. Haines, 8 Cir., Mo., 111 F. 337, 339, wherein the court states: "It was nothing but his conclusion or opinion as to the legal effect of the things that had been said and done by the company, Haines, and himself at some time before the burglary." There is also cited American Life Ins. Co. v. Mahone, 21 Wallace (88 U.S.) 152, 157, 22 L. Ed. 593, 595, wherein it is stated: "The opinion of an *Page 1028 agent, based upon past occurrences, is never to be received as an admission of his principals". There is also cited the case of Cox v. Des Moines Elec. Light Co., 209 Iowa 931, 939, 229 N.W. 244, 247, wherein a statement was held to be incompetent because, "Moreover, it clearly appears that, if made, it is only the statement of a legal conclusion."
I think that the statement Denman attributed to Morrison was incompetent because the expression, "that he covered Otto Muntz with a policy", was a legal conclusion. It seems to me that by the same token Spry's testimony that Morrison said, "I have just covered Otto with a policy", is subject to the same objection that it is merely a legal conclusion and not a statement of fact.
The question to be determined was whether or not Morrison had covered Muntz with a policy before the fatal injury. I would hold that the statements attributed to Morrison by both Spry and Denman are incompetent. If both are excluded, then there is insufficient evidence to support a verdict for plaintiff. While I agree that the case should be reversed, I do not agree with the statement that upon a retrial the testimony of Spry together with the testimony as to the custom of the company would be sufficient to take the case to the jury.
SAGER, J., concurs in the foregoing.