Bernstein v. Metro. Life Ins. Co. Of N.Y., s. 954-963, 966, 967.

• Decision Date: 14 April 1943
• Docket Number: Nos. 954-963, 966, 967.,s. 954-963, 966, 967.
• Citation: 34 A.2d 682
• Parties: BERNSTEIN v. METROPOLITAN LIFE INS. CO. OF NEW YORK, and eleven other cases.
• Court: Maine Supreme Court

34 A.2d 682

BERNSTEIN

v.METROPOLITAN LIFE INS. CO. OF NEW YORK, and eleven other cases.

Nos. 954-963, 966, 967.

Supreme Judicial Court of Maine.

April 14, 1943.

COPYRIGHT MATERIAL OMITTED.

Exceptions from Superior Court, Penobscot County.

Actions on life insurance policies and benefit certificates by Frances C. Bernstein against the Metropolitan Life Insurance Company of New York; by Albert Bernstein, Seldon Bernstein and Robert L. Bernstein, minors, by their mother and next friend, Frances C. Bernstein, Joseph Bernstein, Frances C. Bernstein, Allan Cohen, administrator of the estate of Charles J. Bernstein, deceased, and Helen Bernstein Gans, respectively, against the New York Life Insurance Company; and by Frances C. Bernstein and others and Joseph Bernstein and another, against The Maccabees. On defendants' exceptions to three referees' reports.

Exceptions overruled.

Before HUDSON, MANSER, MURCHIE, and CHAPMAN, JJ.

Michael Pilot and Abraham Stern, both of Bangor, for plaintiff.

James E. Mitchell, of Bangor, for defendant Metropolitan Life Ins. Co.

Fellows & Fellows and A. M. Rudman, all of Bangor, and Leon V. Walker, of Portland, for defendant New York Life Ins. Co.

Cecil H. Burleigh, of Bangor, and Reginald H. Harris, of Boothbay Harbor, for defendant The Maccabees.

HUDSON, Justice.

These twelve actions, by consent heard together before three referees, come up on defendants' exceptions to acceptances of their reports. The exceptions are practically identical except that in the two Maccabees cases additional errors are claimed. The suits were brought to recover upon life insurance policies and benefit certificates on account of the alleged death of one Charles J. Bernstein, formerly of Bangor.

The principal contention of all defendants is that the record does not disclose a sufficient quantum of proof of death of the insured. Without extended reports the referees found that the plaintiff in each case was entitled to recover a specified amount. These amounts are not contested if there be liability. Although there were no expressed findings of particular facts, it must be assumed that the referees found for the plaintiffs upon all issues of fact necessarily involved. Chabot & Richard Co. v. Chabot, 109 Me. 403, 405, 84 A. 892. So it must be assumed that these referees found for the plaintiffs on the issue of death.

In this jurisdiction, “Questions of fact once settled by referees, if their findings are supported by any evidence, are finally decided. They and they alone are the sole judges of the credibility of witnesses and the value of their testimony.” Staples v. Littlefield, 132 Me. 91, 93, 167 A. 171, 172; Richardson v. Lalumiere, 134 Me. 224, 227, 184 A. 392.

It seems to have been conceded that Mr. Bernstein, the insured, disappeared on December 27, 1939, and that since then there has been no intelligence with respect to him, although search and inquiry were made. These actions were brought about seven months after the disappearance-that is, within the seven-year period during which there is a presumption of continuance of life and after which, “without intelligence respecting him, the presumption of life will cease, and it will be incumbent on the other party asserting it, to prove that the person was living within that time.” Stevens v. McNamara, 36 Me. 176, 178, 179, 58 Am.Dec. 740; Wilson, Adm'x v. Prudential Insurance Co., 132 Me. 63, 65, 66 A. 57, and cases cited therein.

These presumptions of life and death as well as the presumption against death by suicide may be repelled by sufficient proof of facts. Even during the seven-year period while the presumption of continuance of life exists, “Death may be proved by showing facts from which a reasonable inference would lead to that conclusion ***.” Johnson v. Merithew, 80 Me. 111, 115, 13 A. 132, 133, 6 Am.St. Rep. 162.

Whether death has taken place is a question of fact for the triers of facts and “Each case must be decided by the competent tribunal upon proof of the facts and probabilities, that life has been destroyed.” White v. Mann, 26 Me. 361, 370. Death may be established by facts proven and proper inferences based thereon and where the evidence is undisputed, yet if different legitimate inferences may be drawn from it, a question of fact is presented for the jury (here the referees). Whitehouse v. Bolster, 95 Me. 458, 461, 50 A. 240, a case, however, not involving death but pertinent in principle.

During the existence of the presumption of continuance of life, the fact of mere disappearance is insufficient to prove death, but disappearance, where there is no intelligence as to the absentee, although search and inquiry are made, together with other circumstantial facts proven with legitimate inferences based thereon, may be sufficient to establish death. Herein the facts tending to show death were circumstantial, not direct.

Death need not be proved beyond a reasonable doubt. Where the evidence is only circumstantial and “‘two equally plausible conclusions are deducible from the circumstances,’ the jury” (the referees herein had jury rights) “may decide which it shall adopt *** and ‘every other reasonable conclusion than the one arrived at need not be excluded in civil actions.”’ Cox v. Metropolitan Life Ins. Co., 139 Me. -, 28 A.2d 143, 145.

In the cases at bar, our duty is simply to determine whether the findings of the referees were supported by any evidence of probative value, not by a fair preponderance of it. As stated in Staples v. Littlefield, supra, on page 93 of 132 Me., at page 171 of 167 A., “We are not, therefore, obliged to study the voluminous report of the evidence in this case for the purpose of ascertaining on which side the evidence preponderates or what testimony we regard as most entitled to credence. *** The parties to this controversy submitted their cause to a tribunal of their own choosing. To it they intrusted, without limitation, the power to decide questions of fact. Having chosen to go to that tribunal, they cannot now be heard upon the merits by this court so long as there was produced before the referees any evidence upon which could be based a decision.”

The record discloses that Charles J. Bernstein, the insured, when he left his home in Bangor on December 27, 1939, was a man fifty-five years old, living with his wife fourteen years younger than he, four children by her, the oldest fourteen, twins thirteen, and a month old baby, together with his son, Joseph, twenty-five years old, issue of a former marriage. By that marriage he also had a daughter, Helen (older than Joseph), who lived in Connecticut. His home life was happy; he was an affectionate husband and father. He had had a cheerful disposition and had seemed to enjoy life, but there was much evidence that at least for several months before his disappearance he was extremely unhappy. It pictured him as a greatly discouraged man whose spirit had been sadly broken, so enmeshed with crushing circumstances that return to his former status of happiness and contentment seemed to him impossible. It disclosed many facts of recent occurrence before the disappearance from which the referees could have found that Mr. Bernstein believed his future was to contain only disgrace and sorrow which would deprive him of all desire to continue on fighting the battle of life.

He was a small loan investor and insurance broker. He never had been affluent. Mostly he hired his capital. His income was dependent on his ability to receive a higher percent on money he loaned than he paid in borrowing, and had diminished greatly. When he disappeared, he was hopelessly insolvent, his indebtedness exceeding his assets by more than $30,000. Upon pressure, he faced bankruptcy. “His insurance premiums were pressing him.” He had borrowed practically all he could from friends, relatives, and others. He had exhausted his credit at the bank, where he was in default. The loan values of his insurance policies had become almost nil. His home was heavily mortgaged.

He was a proud man and in the past had secured the confidence and respect of those with whom he had dealt. His inability to pay two of his creditors in particular, his aged uncle and an elderly friend, Mr. Zinn, disturbed him greatly. His disclosed purpose of leaving Bangor on December 27th was to try to procure a loan in Boston from one whom he had known for years for aid in paying his note to Mr. Zinn. Originally he had borrowed $5,000 from him. Some months before his departure he had with much difficulty raised $2,000 and had reduced the Zinn loan to $3,000, for which balance he gave him his note payable on January 1, 1940. Immediate payment of this he faced upon leaving home. When his son, Joseph, was taking him to the station to entrain for Boston, he told him that “George Zinn had showed him more consideration than most of his friends” and that “he was going to pay George Zinn off if it was the last thing he was ever going to do.” He had already stated that “he was in so deep he didn't know how he was ever going to come out of the hole” and that “he was paying more interest than he was earning.” He also said he couldn't face bankruptcy because of his friends, that “he couldn't let down his uncle Harris, who was eighty-five years old, and George Zinn and the rest of his friends.”

Upon his arrival in Boston, without success he sought a loan of $1,500 from Mr. Garrity, an old acquaintance. The most he could obtain from him was $50, which he would not accept. It would afford no relief. When he left Mr. Garrity he told him that he would be sorry. Two days later Garrity read in the Boston papers that Mr. Bernstein was missing off the Boston-New York boat.

Recently his secretary, a young lady, had noticed how depressed he was. She kept his books and had knowledge of his financial situation. She volunteered a loan of $500 to him from herself and her sister. He took it but returned it almost at once, saying that ...