Cox v. Metro. Life Ins. Co.

• Decision Date: 01 September 1942
• Parties: COX v. METROPOLITAN LIFE INS. CO.
• Court: Maine Supreme Court

28 A.2d 143

COX

v. METROPOLITAN LIFE INS. CO.

Supreme Judicial Court of Maine.

Sept. 1, 1942.

Exceptions and Motion for New Trial, from Superior Court, Kennebec County; Edward P. Murray, Judge.

Action of indebitatus assumpsit upon account annexed by Sarah E. Cox against Metropolitan Life Insurance Company on an accident policy. To review an adverse judgment, defendant brings exceptions.

New trial granted.

Before STURGIS, C. J., and THAXTER, HUDSON, MANSER, and MURCHIE, JJ.

Locke, Campbell & Reid, of Augusta, for plaintiff.

Pattangall, Goodspeed & Williamson, of Augusta, for defendant.

HUDSON, Justice.

This is an action of indebitatus assumpsit on account annexed (Sec. 40, Chap. 96, R.S. 1930), brought by the plaintiff to recover the face amount of an accident insurance policy because of the death of the insured by alleged accident. The defendant pleaded that the deceased committed suicide, not covered by the policy. The case was tried to the jury and it determined the cause of death to be accident. The defendant brings the case up on motion and exceptions.

At the close of the charge certain requests of instruction were made, among which was this by plaintiff's counsel:

"Where the defendant relies upon circumstantial evidence to prove suicide it is the consensus of opinion that to establish death by suicide the party making the averment must prove it by facts which exclude every reasonable hypothesis of natural or accidental death." The Justice said:

"Now I give that in substance. I give it in my own words. In this case the plaintiff contends that there is nothing but circumstantial evidence to rebut the presumption of death not by suicide. She says there being nothing but circumstantial evidence here, that it must be clear and convincing and that those circumstances must exclude everything else except the fact that they bring about suicide. I give that as an instruction * * *." (Italics ours.)

Thus the jury was given the rule that applies only in criminal cases where proof is by circumstantial evidence. "In civil cases the rule of criminal law that where circumstantial evidence is submitted the facts proved must be such as to preclude every other hypothesis except the guilt of the accused does not apply. In a civil case circumstantial evidence need not exclude every reasonable conclusion other than that arrived at by the jury. The rule as to circumstantial evidence in a civil case is that a party will prevail if the preponderance of the evidence is in his favor. Where two equally plausible conclusions are deducible from the circumstances, the jury is left to decide which shall be adopted." 20 Am. Jur., 1043, Sec. 1189.

The defense being that of suicide, the presumption that death was not suicidal obtained and upon the defendant rested the burden of going ahead with the evidence to overcome the presumption. Finally, however, the burden of proof as distinguished from the burden of going ahead with the evidence rested upon the plaintiff, who would be entitled to recover only if she established that burden of proof by a fair preponderance of the evidence. The burden of proof never shifts, but the burden of evidence, so-called, may shift.

"'Burden of proof and 'burden of evidence' are often confused. The phrase 'burden of proof is, in fact, more philosophical than practical. It means generally that a plaintiff, however often the evidence shifts, must upon the whole persuade the jury, by legal evidence, that his contention is right. The risk of nonpersuasion is all the time upon him. If he fails to persuade, he loses his case. The risk of nonpersuasion is the burden which he must assume." Foss v. McRae, 105 Me. 140, 143, 73 A. 827.

The defendant, having accepted the burden of going ahead with the evidence tending to establish suicide, introduced only circumstantial evidence for that purpose. The instruction to the jury required the defendant to produce evidence not only "clear and convincing" but which would "exclude everything else except the fact that they bring about suicide."

Where the evidence in a civil action is only circumstantial and "two equally plausible conclusions are deducible from the circumstances," the jury may decide which it shall adopt (see 20 Am.Jur., Sec. 1189, page 1043, supra, and 97 Am.St.Rep., 802, Note b) and "every other reasonable conclusion than the one arrived at need not be excluded in civil actions." Note b, supra.

Ellis v. Buzzell, 60 Me. 209, 11 Am.Rep. 204, was an action of slander for charging one with adultery. The defendant pleaded truth and so undertook establishment of the adultery. The Court, in considering whether the defendant had to establish it beyond reasonable doubt, stated on page 211 of 60 Me.:

"The burden, however, of proving that what he has said is true, rests rightfully enough upon the defendant, not only because he holds the affirmative according to the pleadings, but because of the presumption of innocence. This presumption, as well as whatever testimony the plaintiff may offer to repel the charge, the defendant must be prepared to overcome by evidence.

"But when he has done this by that measure and quantity of evidence which is ordinarily held sufficient to entitle a party upon whom the burden of proof rests, to a verdict in his favor in a civil case, shall he be required to go further, and in order to save himself from being mulcted in damages for the benefit of the plaintiff, free the minds of the jury from every reasonable doubt of the plaintiff's guilt, as the State must in the trial of a criminal prosecution?

"We see no good reason for thus confounding the distinction which is made by the best text-writers on evidence, between civil and criminal cases with regard to the degree of assurance which must be given to the jury as the basis of a verdict."

Camden v. Belgrade, 75 Me. 126, 46...