Hinds v. John Hancock Mut. Life Ins. Co.

• Decision Date: 27 October 1959
• Citation: 155 Me. 349,155 A.2d 721
• Parties: , 85 A.L.R.2d 703 David C. HINDS by Guardian v. JOHN HANCOCK MUTUAL LIFE INSURANCE CO.
• Court: Maine Supreme Court

Page 721

155 A.2d 721

155 Me. 349, 85 A.L.R.2d 703

David C. HINDS by Guardian v. JOHN HANCOCK MUTUAL LIFE INSURANCE CO.

Supreme Judicial Court of Maine.

Oct. 27, 1959.

Niehoff & Niehoff, Lewis L. Levine, Waterville, for plaintiff.

Locke, Campbell, Reid & Hebert, Augusta, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN and DUBORD, JJ.

WEBBER, Justice.

Plaintiff is beneficiary of an insurance policy covering the life of his late father, Donald Hinds. The policy provides for payment of a death benefit of $9,000 and, in addition thereto, of a like sum in the event the death of the assured should be due to bodily injuries sustained solely through 'violent, external and accidental means.' Suit was brought in behalf of plaintiff, a minor, by Emily Hinds, his mother and legal guardian. It is not disputed that the death of the assured being shown, the plaintiff is entitled to recover the ordinary death benefit of $9,000. The jury, however, awarded double indemnity as reflected by a verdict of $18,000. Issues are raised both by general motion and exceptions.

At the outset it was stipulated that an analysis of the blood of the decedent, Donald Hinds, made shortly after his death, disclosed an alcoholic content of .267% by weight. During the presentation of the plaintiff's case, it was shown by competent medical and other testimony that the assured was found slumped unconscious in a chair at his kitchen table late in the evening; that he was removed to a hospital and died there without regaining consciousness; that the cause of death was a gunshot wound inflicted by a revolver fired while in contact with the skin in the region of the right temple; that the bullet pursued approximately a horizontal course through the head from right to left; that decedent was a 'big man' over six feet tall and weighing about 200 pounds; that he was fifty years old and apparently in good health; that on a table at his right side were a revolver and an opened package of bullets; that there were present no cloths or other gun cleaning paraphernalia; that there were no outward or visible signs of any violent scuffle, quarrel or other disturbance on the premises; and that there were empty whiskey bottles near the decedent's body. The family physician, first to arrive at the scene, found Emily Hinds holding her husband's head. He described her as appearing confused and in a state of shock. Social and business friends gave testimony tending to negative any apparent motive for suicide. A medical expert stated that one in the decedent's state of intoxication would be confused, with his reactions markedly slow and his pain sensation diminished; that he would be unable to think clearly but would not be unconscious and would be able to 'navigate' although not very steadily. Not one of the witnesses had ever before seen the decedent in this stage of intoxication. Emily Hinds, although inferentially an eye witness to the tragedy, was not called by the plaintiff.

On this posture of the evidence, as will be shown, the plaintiff at the close of his main case had by no means offered sufficient proof of death by 'accidental means.' However, no request was made to the court to direct a verdict and we are satisfied that the election by counsel for the defendant to go forward with evidence stemmed largely from the uncertainty heretofore existing in this jurisdiction as to the evidentiary status of presumptions. We will have occasion to discuss this problem later in the opinion. Attention should first be given, however, to the evidence offered by the defendant.

The witness first called in defense was Emily Hinds. At the very beginning of her examination, she was asked if she was the widow of Donald Joseph Hinds. She then replied, 'I refuse to testify, on the advice of counsel, on my constitutional right that it might tend to incriminate me.' (Emphasis supplied.) She was then asked, 'Do you consider that you would be incriminated by being the wife of Donald Joseph Hinds?' At this point the jury was ordered to retire and colloquy then ensued which resulted in a ruling by the presiding justice that the pending question and all further questions of this witness were excluded because of her claim of privilege. Defendant's counsel took no exception nor did he pursue the matter further with this witness. He next called a police officer who had investigated the death on the evening of its occurrence. This witness identified the gun which he had observed on the kitchen table as being a 22 caliber automatic pistol, designed to fire long rifle bullets. He testified that the broken box of ammunition scattered about the table contained short rifle bullets. The full box originally contained 50 cartridges, all of which were accounted for. The officer counted 47 cartridges on the table and found three in the gun, one of which had been fired. He further noted what appeared to be a few business papers scattered on the table. He noted the presence on the floor beside the table of two empty bottles, each designed to contain a fifth of a gallon of whiskey. He was permitted to testify that on the evening in question he had a conversation with Emily Hinds as to the events leading up to the shooting of her husband but, upon objection by the plaintiff, was not allowed to state the substance of that conversation. Thereupon, in the absence of the jury, the defendant made an offer to prove by the witness that Emily Hinds freely and voluntarily described to him the events of the evening which culminated when the decedent held the gun against his right temple and pulled the trigger. This proffered evidence was rejected by the court as hearsay. At this point the evidence on both sides was closed and the case submitted to the jury, with what result we have already noted.

In the case of Cox v. Metropolitan Life Ins. Co., 139 Me. 167, 28 A.2d 143, involving suit on a policy covering accidental death, our court recognized that the burden of proving accident rested upon the claimant throughout the trial and never shifted. The distinction is clearly made in Watkins v. Prudential Ins. Co., 1934, 315 Pa. 497, 173 A. 644, 649, 95 A.L.R. 869, 875, as 'between suits on insurance policies like the one here sued on, which insure against death as a result 'of bodily injuries effected solely through external, violent and accidental means' and suits on those policies which insure against death but which contain a proviso avoiding the policy if the insured dies by his own act.' As the court there pointed out, in the former situation the plaintiff has the unremitting burden of proof as to accident, whereas in the latter situation the plaintiff need only prove death while the defendant has from the inception the burden of proof as to suicide which is there raised as an affirmative defense. So in the case before us, the death of the insured person by violent and external means was conceded. The defendant by its pleadings having raised the issue, it remained for the plaintiff to prove by a fair preponderance of the whole evidence that those means were also accidental. Headlee v. New York Life Ins. Co., 1943, 69 S.D. 499, 12 N.W.2d 313, 315; Ryan v. Metropolitan Life Ins. Co., 1939, 206 Minn. 562, 289 N.W. 557.

The plaintiff in the first instance was aided by the so-called presumption against suicide. This presumption stems from and is raised by our common knowledge and experience that most sane men possess a natural love of life and an instinct for self-protection which effectively deter them from suicide or the self-infliction of serious bodily injury. It is commonly recognized that there is an affirmative presumption of death by accidental means which arises under appropriate circumstances from the negative presumption against suicide. Whether and to what extent the presumption persists in the face of contrary evidence is a matter of great and even decisive improtance in the instant case.

Although a small minority of states adhere to an opposite view, it is now almost universally held that disputable presumptions are not themselves evidence nor are they entitled to be weighed in the scales as evidence. Rather are they recognized as 'rules about evidence.' They may be distinguished from inferences in that an inference is permissible, whereas a presumption is mandatory. They compel a finding of the presumed fact in the absence of contrary evidence. They perform the office of locating the burden of going forward with evidence, but having performed that office they disappear in the face of countervailing evidence. 20 Am.Jur. 170, Sec. 166; Wigmore on Evidence, 3rd Ed., Vol. IX, Page 286, Sec. 2490 et seq.; Annotation, 103 A.L.R. 185; 158 A.L.R. 747; 12 A.L.R.2d 1264; New York Life Ins. Co. v. Gamer, 1938, 303 U.S. 161, 58 S.Ct. 500, 114 A.L.R. 1218; Tyrrell v. Prudential Ins. Co. of America, 1937, 109 Vt. 6, 192 A. 184, 115 A.L.R. 392; Jodonin v. Baroody, 1948, 95 N.H. 154, 59 A.2d 343; Duggan v. Bay State St. Ry. Co., 1918, 230 Mass. 370, 119 N.E. 757, L.R.A.1918E, 680; Moroni v. Browders, 1944, 317 Mass. 48, 57 N.E.2d 14; Hill v. Cabral, 1938, 62 R.I. 11, 2 A.2d 482, 121 A.L.R. 1072; Smith v. Tompkins, 1932, 52 R.I. 434, 161 A. 221; Carson v. Metropolitan Life Ins. Co., 1956, 165 Ohio St. 238, 135 N.E.2d 259.

The minority view that the presumption is itself evidence or has evidentiary weight has its adherents among the courts, some of which have felt constrained to that result by judicial interpretation of applicable statutes. Smellie v. Southern Pacific Co., 1931, 212 Cal. 540, 299 P. 529; see Speck v. Sarver, 1942, 20 Cal.2d 585, 128 P.2d 16; Wyckoff v. Mut. Life Ins. Co. of New York, 1944, 173 Or. 592, 147 P.2d 227; See Lewis v. New York Life Ins. Co., 1942, 113 Mont. 151, 124 P.2d 579; Allison v. Bankers Life Co., 1941, 230 Iowa 995, 299 N.W. 889; Mutual Life Ins. Co. of New York v. Maddox, 1930, 221 Ala. 292, 128 So. 383. No statute exists in Maine declaring...