Berggren v. Mutual Life Ins. Co. of New York

• Decision Date: 10 October 1918
• Citation: 231 Mass. 173
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: OLAUS BERGGREN & another, administrators, v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK.

231 Mass. 173

OLAUS BERGGREN & another, administrators, v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK.

Supreme Judicial Court of Massachusetts, Worcester.

October 10, 1918

September 30, 1918.

Present: RUGG, C J., DE COURCY, CROSBY, & CARROLL, JJ.

Practice, Civil New trial. Witness, Credibility.

At the trial of an action on a policy of life insurance the principal question before the jury was whether the insured, who died as the result of taking cyanide of potassium, came to his death by accident or by suicide. The jury found in answer to questions that the insured came to his death by accident, and a verdict was ordered for the plaintiff. The defendant moved for a new trial on the ground of newly discovered evidence. At the hearing of this motion it appeared that after the trial an agent of the defendant, who before the trial had spent about a month in trying to ascertain the facts, was sent again to the neighborhood where the insured lived with instructions to reinvestigate the case to see whether there might be any evidence previously missed and whether persons talked more freely after the trial, that a man in this neighborhood, who before the trial had stated that he knew nothing about the case, made an affidavit tending to show an intimate acquaintance of the affiant with the insured and giving in minute detail conversations with him a comparatively short time before his death, in which the insured expressed a purpose to commit suicide and gave the reasons actuating him, one of them being business adversity and in which he talked also of taking poison. Counter affidavits were filed tending to discredit some or all of the statements of this affiant. The agent of the defendant who made the investigation testified orally at the hearing of the motion for a new trial. The judge who had presided at the trial heard the motion and made an order granting a new trial. In granting it he said, "There was some question in my mind whether the verdict of the jury was fairly warranted by the evidence. The inference of accident was a forced one, and, without saying that it was not legally warranted, the question was at least so close that slight evidence might well have changed the result. In the exercise of what in my opinion is sound judicial discretion, in view of my knowledge of the evidence at the trial, I must grant the motion." The judge reported his order for a new trial for determination by this court. Held, that there had been no abuse of discretion by the trial judge in granting the motion for a new trial and that the case should stand for trial.

In the case above described it was said that, even if the newly discovered evidence were cumulative, that alone would not be decisive against granting the motion for a new trial.

In the same case it was held that, although it was shown that the affiant previously had made assertions inconsistent with some of those contained in his affidavit, this was not conclusive against his credibility as a witness.

In the same case it appeared that one witness at least had been called at the trial who knew or might have known that the facts disclosed in the affidavit were within the knowledge of the affiant, and it was held that, although this was a matter to be considered, it was not a controlling reason for denying the motion for a new trial.

In the same case it was held that the circumstance, that the affiant and his knowledge of material facts were discovered by an agent of the defendant who had searched for evidence before the trial, although a matter to be considered, was not conclusive against granting the motion for a new trial, especially as this agent testified orally before the judge at the hearing of the motion for a new trial and the judge thus was better able than any one else to decide whether the agent was honest and trustworthy.

In the same case it was held that it was proper for the judge to take into account the strength or weakness of the plaintiff's case at the trial in passing upon the defendant's motion for a new trial.

THREE ACTIONS OF CONTRACT by the administrators of the estate of Karl W. Leaf, late of Quincy, each on a policy insuring the life of the plaintiff's intestate. Writs dated April 30, 1917.

In the Superior Court the cases were tried together before Morton, J. At the close of the evidence the judge submitted to the jury in the two cases against the Mutual Life Insurance Company of New York the question, "Did the deceased, Karl Leaf, commit suicide?" The jury answered, "No." In the case against the Travelers Insurance Company the judge submitted to the jury the question, "Was the deceased Karl W. Leaf's death due to accident?" The jury answered, "Yes." Thereupon the judge ordered verdicts for the plaintiffs, in the first case in the sum of $3,358.56, in the second case in the sum of $2,238.16 and in the third case in the sum of $8,396.28. Thereafter each of the defendants filed a motion for a new trial on the ground of newly discovered evidence. The motions were heard by Morton, J. The evidence presented at the hearing is described in the opinion. At the close of the hearing the plaintiffs in each of the cases asked the judge to make the following rulings:

"1. Upon the motion in each case, the affidavits in support thereof, the counter-affidavits and the oral testimony received at the hearing, the motion as filed in each case should be denied.

"2. Upon the motion in each case, all the supporting affidavits, the counter-affidavits and the oral testimony received at the hearing, the motion in each case, upon the exercise of a sound judicial discretion of the court, should be denied."

The judge refused to make either of these rulings. He made an order in each case granting the motion for a new trial, and filed a statement of findings and rulings, containing those that are described in the opinion. The plaintiffs excepted to the judge's rulings and refusals to rule and to the orders granting a new trial and asked that the cases be reported to this court. The judge, being of opinion that his rulings and orders ought to be determined by this court before any further proceedings in the Superior Court, reported the cases for such determination.

M. M. Taylor, for the plaintiffs.

Captain M. C. Taylor, who assisted in the preparation of the brief, was absent on military service in France.

C. C. Milton, for the defendant Travelers Insurance Company.

R. Foster & G.

Hoague, for the defendant Mutual Life Insurance Company of New York, submitted a brief.

RUGG, C. J. This record relates to the granting of motions for a new trial on the ground of newly discovered evidence. The actions are to recover upon policies of insurance on the life of

Karl W. Leaf. He died as the result of taking cyanide of potassium, which was contained in the neck of a bottle of medicine imported from England and bought for him in some drug store. There was no claim or evidence that he had been murdered. The chief question at the trial before the jury was whether the insured came to his death by accident, as contended by the plaintiffs, or by suicide, as contended by the defendants. The trial lasted several days and many witnesses testified. The jury in answers to questions found in favor of the contentions of the plaintiffs and verdicts were ordered accordingly.

After the trial an agent of the defendants, who previously had spent about a month in trying to ascertain the facts, was sent again to the neighborhood where the insured lived with instructions to reinvestigate the cases to see if there might be any evidence previously missed and if people had talked more freely after...