Flanagan v. Equitable Life Assur. Soc. of U.S.

• Decision Date: 11 January 1954
• Docket Number: No. A--57,A--57
• Citation: Flanagan v. Equitable Life Assur. Soc. of U.S., 102 A.2d 35, 14 N.J. 309 (N.J. 1954)
• Parties: FLANAGAN v. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES.
• Court: New Jersey Supreme Court

Page 309

14 N.J. 309

102 A.2d 35

FLANAGAN v. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES.

No. A--57.

Supreme Court of New Jersey.

Argued Nov. 30, 1953.

Decided Jan. 11, 1954.

John T. Keefe, New Brunswick, for appellant.

Arthur J. Blake, Jersey City, for respondent (Emory, Langan & Lamb, Jersey City, attorneys).

The opinion of the court was delivered by

WACHENFELD, J.

The respondent, the Equitable Life Assurance Society of the United States, issued a policy of insurance on the life of Konstanten Zarecky in the sum of $3,000, wherein the appellant was named as beneficiary. Amongst other things, it provided that in the event the insured met his death 'directly and exclusively by external, violent and purely accidental means,' the company would pay an additional $3,000.

The contract further stipulated that no payment would be made for the additional amount 'for any loss resulting from * * * self-destruction or self-inflicted injury.'

On November 29, 1951, while the policy was in effect, the assured was struck and killed by a train on the Pennsylvania Railroad at Howe Lane, North Brunswick Township.

The appellant sought the amount of the policy and an equal amount as additional double indemnity. The insurer paid the face amount of the contract but refused double indemnity, asserting the assured's death was not accidental but suicidal.

The deceased worked at the Mack Manufacturing Company doing heavy work in the casting department. After the death of his first wife he remarried, but shortly separated from his second wife due to his heavy drinking. He had been operated on for a gall bladder condition and had not worked for six months prior to his death. He received unemployment compensation from the company but apparently was in debt to a considerable extent, indicated by the fact that he owed his landlord three months' rent. He lived alone and the night before his death voiced his apprehension about his health, broke down and cried, and was despondent and worried about his future. He borrowed $1 so he could see his doctor and lamented the fact that he had no money and no place to go.

There was a path leading to the tracks where the deceased was struck by an eastbound train on the main line of the Pennsylvania Railroad Company going 80 miles an hour.

The only eye witness was the train engineer, who testified the insured walked rapidly up the embankment of the tracks when the train was 700 feet away, that the warning horn was blowing continuously but the deceased paid no attention to it. He walked without hesitation until he stopped in the middle of the tracks and was down on his hands and knees facing the train when he was struck.

His hearing was good; it was a clear day and visibility was at least half a mile in the direction the train was approaching. His body was retrieved in 'little pieces' and was identified by a thumb and a few fingers.

At the close of the case, each side moved for a directed verdict in its favor, the defendant urging the evidence showed the deceased committed suicide, while the plaintiff insisted it proved the decedent met his death 'through accidental and external means.'

Both motions were denied, the issue being submitted to the jury for its determination. The trial court, after referring to the evidence, charged: 'Of course, at this posture of the case there is no legal presumption against suicide.'

The jury returned a verdict for the defendant insurance company and the plaintiff appealed to the Appellate Division, where the judgment was unanimously affirmed. The matter is before us on our granting a petition for certification.

The only question to be determined is the propriety of the charge of the trial court as above-quoted.

The incident itself, the surrounding circumstances, and the preceding history all point clearly and strongly to intentional suicide. In fact, there is little, if any, evidence capable of being construed otherwise, and the inquiry is whether in this status the charge of the court that there was 'no presumption against suicide' was legally justified. We think it was.

Domanowski v. Prudential Ins. Co., 116 N.J.L. 247, 182 A. 906 (E. & A. 1936), pointedly holds that a presumption against suicide is not evidence and should not be treated as such by a jury in considering its verdict.

The rule as so expressed has frequently been proclaimed. In Dunn v. Goldman, 111 N.J.L. 249, 168 A. 299 (Sup.Ct.1933), the court held a presumption arising under the law is not evidence; it is merely a rule concerning evidence, and a presumption so created, when met by uncontradicted proof, ceases to be a factor in the case. This case, as well as Domanowski v. Prudential, supra, is cited and followed in Kirschbaum v. Metropolitan Life Ins. Co., 133 N.J.L. 5, 42 A.2d 257, 259, 158 A.L.R. 743 (E. & A. 1945), where the court held:

'The statement that a presumption is not evidence to establish the presumed fact is meaningless if the jury is instructed that it may take the presumption into consideration. While there may be a conflict of authority in other jurisdictions as to whether the presumption against suicide has any probative force and is to be weighed by the jury * * * the rule is settled in New Jersey that the presumption is not evidence and consequently is not for the jury to consider. As stated in the Domanowski case, supra, the presumption is for the use of the trial court in determining whether a Prima facie case has been established so as to justify the trial court in requiring the defendant to come forward with evidence at the peril of suffering a direction of a verdict against him, if he fails to do so. That this, the settled law in New Jersey, is the sound rule finds support in the recommendations of the American Law Institute as embodied in its Model Code of Evidence, Rule No. 704, and the comment thereunder * * *.'

The law thus defined is re-affirmed in Gaudreau v. Eclipse Pioneer Division of Bendix Air Corp., 137 N.J.L. 666, 61 A.2d 227 (E. & A. 1948); while in Carroll v. Prudential Ins. Co., 125 N.J.L. 397, 15 A.2d 810 (E. & A. 1940), not only was the rule embraced, but the Court of Errors and Appeals affirmed the directing of a verdict in favor of the defendant insurance company.

In seeming conflict is Aydelotte v. Metropolitan Life Ins. Co., 124 N.J.L. 266, 11 A.2d 122, 125 (E. & A. 1940), where a similar request to charge was adjudged improper. A careful analysis makes it obvious the ruling was occasioned by the lack of evidence indicating death resulted from self-destruction. Under the particular circumstances present, the court held the request 'went too far,' but it cited the 'true rule' as follows:

'This presumption against suicide, however, is rebuttable, and does not prevail where clear and definite evidence of suicide is produced; or where there is no evidence indicating an accident, And the facts point strongly to suicide * * *.'

We are in accord with the view expressed in the Appellate Division, 26 N.J.Super. 312, 97 A.2d 710.

The judgment below is affirmed.

For affirmance: Chief Justice VANDERBILT, and Justices OLIPHANT, WACHENFELD, JACOBS and BRENNAN--5.

For reversal: Justices HEHER and BURLING--2.

HEHER, J. (dissenting).

I shall not go into the evidence, except to say that at the time the accused was under the care of a physician, following a gall bladder operation, and there is some evidential basis for the suggestion that it is not improbable he was taking a short-cut to his physician's office, via a by-road or pathway leading to the railroad, a course he had taken on occasion. There is no contention that the proofs did not raise an issue for the jury as to whether the death of the assured was due to external, violent and purely accidental means within the intendment of the policy. The sole question is whether there was error in this instruction to the jury: 'Of course at this posture of the case there is no legal presumption against suicide.' The defendant insurer maintains that this 'was a correct statement of the law'; but the essential inquiry is whether it was a proper instruction to the jury.

My conception of the true nature of the presumption invoked here is set down in Meltzer v. Division of Tax Appeals, 134 N.J.L. 510, 48 A.2d 842 (Sup.Ct.1946). The presumption is not in itself evidence. It is not the fact in itself, nor the inference itself, but the legal consequence attached to it. A presumption of law compels the particular conclusion in the absence of evidence Contra; e converso, it vanishes as a rule of law where substantial evidence is adduced by way of contradiction or explanation. But where the legal procedural consequence is thus removed by the presentation of evidence to the contrary, 'the inference, as a matter...