Gero v. John Hancock Mutual Life Insurance Co.

• Decision Date: 11 February 1941
• Citation: 18 A.2d 154,111 Vt. 462
• Parties: KATHLEEN A. GERO v. THE JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY
• Court: Vermont Supreme Court

18 A.2d 154

111 Vt. 462

KATHLEEN A. GERO v. THE JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY

Supreme Court of Vermont

February 11, 1941

January Term, 1941.

Insurance Disappearance.---1. Circumstantial Evidence in Disappearance Cases.---2. Circumstances Must Induce Reasonable Inference of Fact to be Proved.---3. Introduction of Facts Irrelevant to Issue Permits Jury to Indulge in Speculation and is Prejudicial.---4. Objection Insufficient When It Does Not Indicate Precise Ground Upon Which It is Predicated.---5. Motion to Strike Hearsay Testimony.---6. Motion to Strike Testimony Will Not Reach Other Testimony.---7. Scope of Cross Examination.---8. Abuse of Discretion.---9. Supreme Court Will Not Search Transcript.---10. General Exception for Failure to Charge re Claimed Error in Instructions.---11. Duty of Counsel.---12. Failure to Point Out Omissions in Instructions.---13. Emphasis in Instructions.---14. Each Case Considered on Own Merits.---15. Exception that Court did Not go Far Enough in Its Charge.---16. Duty of Court when Evidence Merely Circumstantial.---17. Instruction on Legal Effect of Circumstantial Evidence.---18. Instructions to the Jury re Circumstantial Evidence.---19. Requests for Instructions on Conjecture, Surmise or Suspicion.---20. Refusing Request to Instruct Jury That Finding of Death is Mere Speculation and Conjecture.---21. Fact and Date of Death Shown by Circumstantial Evidence.---22. Death and Date of it Proved by Circumstantial Evidence.---23. Fact of Death Not to be Inferred Solely from Disappearance.---24. Fact of Death and Time of it Questions for Jury upon Evidence in Case.---25. Fact Body Never Found Not Conclusive to Destroy Inference of Death.---26. Inference upon Inference.---27. Immediate Inferences Recognized.---28. Parallel Inferences Drawn Independently.---29. Inferences of Death and Time of It.---30. Inference of Drowning from Disappearance.---31. Refusal to Give Requested Instructions.

1. Great latitude is allowed in the reception of circumstantial evidence in cases concerning the disappearance of persons.

2. Circumstantial evidentiary facts in order to be admissible must tend to connect the supposed evidentiary fact with the factum probandum, as the circumstances must be such as to induce a reasonable inference of the existence of the facts sought to be proved thereby.

3. In an action to recover insurance for the loss of life of one who as the purser on a boat disappeared during or at the end of a voyage and the doors of whose office and store room had swung shut on other occasions and under certain conditions of wind and motion had no tendency to prove that they had done so at the time in question in the absence of showing a similarity of conditions, and the fact that other members of the crew had on previous, unspecified occasions walked along a narrow ledge for the purpose of entering the office or store room through a window had no relevancy to the issue whether the insured had attempted to do so, so the introduction of such evidence of doors shutting and the crew "walking the guard" at other times permitted the jury to indulge in speculation and was prejudicial.

4. An objection on the ground that there were no such conditions accompanying the course of conduct concerning which inquiry was made as to make the matter helpful in determining the possibilities under the circumstances in evidence did not, in the matter in issue, reasonably indicate to the court the precise grounds upon which predicated by specifying the conditions, the absence of which were complained of, so as to make exception thereto availing.

5. When it appears by cross examination that matters concerning which the witness has testified in chief are only hearsay, motion to strike the testimony should be granted.

6. A motion to strike out testimony after cross examination has shown it to be hearsay will not reach unspecified testimony which subsequent cross examination also shows to be hearsay.

7. The scope and extent of cross examination rests largely in the sound discretion of the trial court and its ruling thereon is not revisable in the absence of an abuse thereof.

8. No abuse of discretion appears in excluding a question on cross examination as to whether a situation existed when the witness in answer to previous inquiries had testified that he knew nothing about the matter.

9. When the claimed connection between a proposed question on cross examination and matters on examination in chief is not pointed out, the Supreme Court will not search the transcript for the purpose of sustaining an exception to its exclusion.

10. An exception "* * * to the court's failure to tell the jury directly in what circumstances the defendant is entitled to a verdict * * *" is equivalent to an exception for failure to charge on all the material facts in the case and is too general to reserve any question for review.

11. It is the duty of counsel specifically to call to the attention of the court any claimed shortage or error in instructions to the jury when it is claimed that the court failed to charge on all the material facts.

12. A defendant who complains that the court instructed the jury insufficiently in explaining "preponderance of evidence" can not avail himself thereof if he failed specifically to call to the attention of the court any elaboration or modification which he desired.

13. A court must not give instructions that unduly emphasize issues, theories or defenses, either by repetition or by singling them out and making them unduly prominent.

14. But in the application of the foregoing rule each case must stand on its own merits.

15. A defendant's exception that the charge is not adequate as given, and without more is misleading, and that there should be instructions to the jury giving them some rules or standards for their guidance in reconciling their conclusions with the evidence, raises the point that the court did not go far enough in its charge.

16. When evidence is entirely circumstantial, it is the duty of the court to explain to the jury the law applicable to evidence of this nature.

17. Instructions upon the legal effect of circumstantial evidence by definition and illustration and explanation of the principles of inductive reasoning therefrom seem sufficiently clear in the instant case in the absence of specification of what more was necessary or what further rules or standards should be given.

18. In instructing the jury upon the effect of circumstantial evidence, it is not necessary to discourse upon the principles of logic.

19. Error occurred upon refusal to give, in a case where they were applicable, the following requests for instructions:

"In order for the jury to find for the plaintiff on either the issue of Gero's death or his death through external violent and accidental means, the jury must find in the evidence something more than evidence which raises a mere conjecture, surmise, or suspicion that those things happened. That Gero met his death on July 16, 1938, or that his death occurred through external, violent and accidental means must be at least the more probable hypothesis, with reference to the possibility of other hypotheses, in order for the plaintiff to recover on either of said issues."

20. It was not error in the circumstances of the case at bar to refuse a request to instruct the jury that a finding of death on a day certain rather than disappearance in life would be mere speculation and conjecture and to direct a verdict for the defendant.

21. The fact of death and the date of it can be shown by circumstantial evidence but it must not be merely speculative or conjectural.

22. Circumstantial evidence of death and the date of it may be proven from circumstances which taken together reasonably tend to support the inference sought to be drawn therefrom.

23. The fact of death is not to be inferred merely from the disappearance of the person whose death is sought to be proved.

24. In a case where there is uncontroverted testimony concerning an insured's good character, good health and domestic felicity when he as a purser on a lake steamboat was last seen some twelve or fourteen minutes before the boat docked for the night, wearing his uniform, carrying his cap, at a point about two and one-half miles from the dock, one-half or three-quarters of a mile off shore where the water was seventy-five feet deep, with no noticeable current with a smooth bottom, on a calm, quiet night, the fact of his death and the approximate time of it were questions for the jury to determine upon all the evidence in the case.

25. The fact that the body of a person whose death upon a large lake is in question has never been found is not conclusive to destroy an inference of his death.

26. The principle that a trier of fact may not legitimately find a fact by inferring its existence from another fact which has itself been found as the result of an inference has been repeatedly approved and applied by this Court.

27. The only inferences of fact which the law recognizes are immediate inferences from the facts proved.

28. A given state of facts proven to the satisfaction of a trier may give rise to several inferences not built upon another but each drawn independently from the evidence.

29. A trier upon a given set of facts may infer therefrom not only death but also the approximate time of it.

30. The same evidence of an insured's good character, habits, disposition and domestic life and absence of any reason for abandoning his family which are sufficient to justify the trier in drawing the inference from his disappearance that he is dead plus the fact that when he was last seen he was on board a boat on a lake also may justify the inference that he was drowned.

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