Gero v. John Hancock Mut. Life Ins. Co.
| Decision Date | 11 February 1941 |
| Docket Number | No. 1681.,1681. |
| Parties | GERO v. JOHN HANCOCK MUT. LIFE INS. CO. |
| Court | Vermont Supreme Court |
[Copyrighted material omitted.]
Exceptions from Washington County Court; Cushing, Judge.
Action by Kathleen A. Gero against the John Hancock Mutual Life Insurance Company on three insurance policies. Judgment for plaintiff, and the defendant brings exceptions.
Judgment reversed and cause remanded.
Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.
Carver & Lawson, of Barre, for plaintiff.
Theodore E. Hopkins, of Burlington, and Theriault & Hunt, of Montpelier, for defendant.
The plaintiff seeks to recover as beneficiary in three insurance policies issued by the defendant company upon the life of her husband, Edward W. Gero. These three policies were identical in amount, and were in force at the time at which the insured is claimed to have met his death. Each provided for the payment of double indemnity upon receipt of due proof that the insured, after the attainment of the age of fifteen and prior to the age of seventy, had sustained bodily injury solely through external, violent and accidental means, occurring after the date of the policies, and resulting, directly and independently of all other causes, in his death, within ninety days from the date of such injury, while the policies were in force, except that no accidental death benefits would be paid if the death resulted from suicide, while sane or insane.
On the trial below there were two main issues: (1) Whether the insured was dead or had disappeared in life; (2) whether, if dead, his death had resulted directly and independently of all other causes from bodily injury sustained solely through external, violent and accidental means, as provided in the policies. The verdict of the jury was in accord with the plaintiff's contention and was for the amount of the double indemnity. The defendant has excepted.
The insured was the purser on the steamer "Ticonderoga", a vessel of 892 gross tons burden, 222 feet long and licensed to carry 900 passengers with a crew of 28 members, operated on Lake Champlain by the Champlain Transportation Company. On the evening of July I5, 1938, there was an excursion from Plattsburg and Port Kent, New York, which terminated at Port Kent, where the last passengers disembarked, at 12:30 A. M. on July 16. The steamer then left for Burlington, Vermont, with only the officers and crew on board, arriving there at about 1:30 A. M. Some ten minutes after leaving Port Kent, the insured handed to his stepbrother, Kenneth Miller, the mate, the latter's pay check, which Miller had given him for safekeeping the previous afternoon, saying that he had better take it. From that time on the insured was seen about the boat on various occasions by Miller, by the captain, Douglas Cameron, by the assistant engineer, Francis Snow, by the assistant manager of the company, Ross Matthews, and by the fireman, Glen Critchlow. When the captain saw and spoke to him at 1 A. M., he was cheerful and laughing. The last person to see him was Critchlow, who met and spoke with him on the main stairway, when the boat was about two and a half miles from Burlington, twelve or fourteen minutes before coming to the dock. The insured was then wearing his blue uniform, the coat of which had brass buttons with the initials of the company thereon, and braid upon the sleeves. He was carrying his uniform cap in his hand. At that time the boat was about one-half or three-quarters of a mile off shore. The lake at that point averaged 75 feet deep, with no noticeable current, and the bottom was smooth and free from any obstructions that might catch and hold a body. The night was calm and the surface of the lake quiet. The insured could dive and swim.
The purser's office was on the port side of the boat, aft. Directly opposite, on the starboard side, was a storeroom, in which certain supplies were kept. The door to each room was equipped with a spring lock, of which the insured had the only keys and which he usually carried upon his person. Each room had an outside window, and the office had a grilled window opening into the main hall of the boat, through which tickets were sold. In the office were desks, or shelves used as desks, and a safe. The insured had a room on board, where he sometimes spent the night, and wherein he kept his civilian clothes and toilet articles. The captain also had a stateroom, next to the storeroom and separated from it by a thin partition.
As the steamer approached Burlington, Ross Matthews went into the purser's office to count and make up a report of the money taken by some slot machines which were on board, and for which he was responsible. When the boat docked, he closed the window and "pulled to the blind", to prevent anyone on the dock from seeing what he was doing. Having finished his task, he locked the money in the safe, and went out, leaving the light on, and locking the room by closing the door. The captain, before he retired for the night, noticed the light shining through the glass of the ticket window, and supposed that the insured was in the office making up his accounts for the trip.
At 8 A. M. the insured did not appear, and, since there was work for him to do, a thorough search was made thoughout the boat. The bed in his room had not been slept in, although it had the appearance that someone had been lying upon it, and his civilian suit, hat, overalls, clean underwear and stockings, pocket-book and toilet articles were found in the room. The light was still on in the purser's office, and the door locked. Kenneth Miller gained entrance by going along the "guard" or "chafing rail", a projection along the outside of the hull, ten inches wide, and getting through the window, which he found open for about six inches, the blind being open about three inches. He found the key to the office on a ring with one or two others on one of the desks. Matthews had been working at the other desk the night before, and had not noticed whether the keys were there at that time. The storeroom, the window of which had beer, open all night, was entered in the same way by Critchlow, and on a shelf therein was found the insured's uniform cap, and under it several keys, one of which was the key to the room. Captain Cameron went to the insured's house, and received information from the plaintiff that he had not been, home that night. The harbor in the vicinity of the dock was dragged with a grappling iron but nothing was found. Since he was seen and spoken to by Critchlow at approximately 1:48 A. M, the insured has never been seen or heard of, and no trace of him alive, or of his dead body, has been discovered. His accounts as purser had not been entirely made up, but on examination by another employee of the company they were found to be correct. There was no shortage in the money in his care.
The plaintiff and the insured were married on May 29, 1933, and had one child, a girl, who was three years old at the time of her father's disappearance. Their domestic life was happy. The insured was very fond of his wife and daughter, whose photograph he carried about in his pocket-book and showed to his friends. He was in good health, of good moral character, temperate in habits, quiet, but cheerful in disposition, and without financial worries. He had been employed by the Champlain Transportation Company in one capacity or another for about three years. He was industrious, and conscientious, trusted by his employer, and well liked and popular among his follow employees, by whom he was regarded as a fine fellow. Before becoming purser on the "Ticonderoga" he had served in the same capacity on the ferry operated by the company between Burlington and Port Kent. He was transferred because the general manager wanted a trusted man on the larger boat. Upon being notified of the transfer he refused to go, because he felt that he had not sufficient education to undertake the more complex duties that the change would entail, and left the service, but a few days later he reconsidered and took the position, in which he proved competent and which he liked. This was about two weeks before his disappearance. On the afternoon of July 15th, he received his pay check, which he cashed at the bank and took the proceeds home to his wife, telling her to pay some taxes that day. He left his house at about 3 P. M. after kissing his wife and daughter, taking with him some clean underwear and stockings, and saying that he would be back the next day. He was usually home at night, but when the boat was late in coming to the dock it was his custom to sleep on board. The plaintiff knew nothing of his disappearance until Captain Cameron called on her on the morning of July 16th.
To account for the manner in which the insured might have met his death, the plaintiff put forth the theory that, having found himself locked out of either his office or the storeroom with his keys left inside, he had attempted to walk along the guard or chafing rail, had lost his balance and fallen into the water. This projection was three feet, seven inches below the sills of the windows and the windows were approximately two feet eight and one-half inches high. The distance along the guard from the quarter deck, where one could get over the side to the guard, to the window of the office was four feet, and to the window of the storeroom nine feet and two and one-half inches. Evidence was introduced, all of it subject to the defendant's exceptions, that on previous occasions the listing of the boat, or the wind, had caused the doors of the office, and storeroom, to swing shut, and, in default of a key, entrance had been gained by members of the crew by passing along the guard and through the window. A combing above the windows could be grasped to facilitate the process. Francis Snow testified that he had "walked the guard" to...
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