Mable B. Tyrrell v. Prudential Ins. Co. of America

• Decision Date: 04 May 1937
• Parties: MABLE B. TYRRELL v. PRUDENTIAL INS. CO. OF AMERICA
• Court: Vermont Supreme Court

192 A. 184

109 Vt. 6

MABLE B. TYRRELL v. PRUDENTIAL INS. CO. OF AMERICA

Supreme Court of Vermont

May 4, 1937

January Term, 1937.

Insurance---Burden of Proof of Death---Burden as to Date of Death---Election as to Reliance on Presumption of Death---Circumstantial Evidence as to Date of Death---Presumption of Death as Shifting Burden of Evidence---Evidence Sufficient to Make Jury Question against Presumption of Death---Against Evidence Rebutting Presumption---Admissibility of Evidence to Explain Allegations in Divorce Petition---Estoppel Arising from Judgment---Estoppels Reciprocal---Latitude in Reception of Circumstantial Evidence---Determination of Competency of Collateral Fact---Competency of Evidence as to Death of Missing Person---Admissibility of Statements of Missing Person on Day of Disappearance---Prejudicial Statement by Counsel as to Claim by Representatives of Adverse Party---Running of Interest---Proof of Death---Purpose---For Benefit of Insurer---Sufficiency---Necessity of Pointing out Defects---Proof Held Sufficient---Charge as to Interest on Insurance Payable---Too Favorable to Complaining Party---Sufficiency of Proof of Death for Court---Effect of Inconsistent Instructions---Presumptions of Life and of Death---No Retrospective Effect to Presumption of Death---Test of Admissibility of Evidence---Of Applicability of Presumptions---No Inference from Proof Person Dead on Certain Day That He Was Dead on a Previous Day---Charging Presumption of Death as Aid in Proving Death Within Seven Year Period---Disputable Presumptions---As Shifting Burden of Evidence, Merely---Office Performed When Evidence Introduced by Party Having Burden---Locative---No Probative Quality---Disappear When Facts Appear.

1. In action on life insurance policies, the burden was on the plaintiff beneficiary to prove the death of the insured.

2. In such action, where, due to default in premium payments, the policies had gone into extended insurance, one for a period which had expired and the other for a period that was still running at the time of trial, plaintiff was required to establish that insured had died while the policy was still in force to recover on the former, but only that he was dead when the suit was brought to recover on the latter.

3. In action on two insurance policies, on one of which the period of extended insurance following default in payment of premiums had expired within seven years after disappearance of insured, while the period was still running on the other at time of trial, plaintiff was not required to elect whether she would stand on claim that insured died on or soon after date of his disappearance or upon presumption of death arising from seven years' absence, but was entitled to the benefit of any evidence she could produce relevant to either issue.

4. In such action, plaintiff could avail herself of all the circumstantial evidence she could find tending to show that the insured died before the first policy lapsed; though she failed on that issue, the presumption of death operated in her favor on the other policy, and if the presumption was rebutted by evidence, she would be entitled to such circumstantial evidence as she could produce.

5. In such action, with respect to policy which was in force as extended insurance at time of trial, more than seven years after disappearance of insured, the presumption of death was enough to shift burden of evidence to defendant and if no evidence had been introduced tending to show that insured was alive, direction of verdict for plaintiff would have been warranted.

6. In such action, with respect to such policy, evidence introduced by defendant company as to unsatisfactory domestic situation and finances of insured and his criminal and fraudulent practices, held sufficient to make jury question as against presumption of death arising from seven years' unexplained absence.

7. In such action, with respect to such policy, evidence introduced by plaintiff as to satisfactory social, financial and domestic circumstances of insured held sufficient to make jury question as against defendant's evidence, since plaintiff's evidence tended to show that absence of insured could not reasonably be explained on any other theory than his death.

8. In action on life insurance policies, where plaintiff, in support of claim that insured, her husband, was dead testified as to their satisfactory marital relations prior to his disappearance and was confronted with certified copy of divorce proceedings instituted by her subsequent to such disappearance showing that in her petition for divorce she signed and swore to allegations of marital misconduct on the part of her husband, evidence that she applied for divorce in order to get title to jointly held real estate and swore to petition without knowing its contents held admissible to explain contradictions, since the judgment in the divorce case concluded only the parties and their privies and the plaintiff was not estopped in action on trial from denying the matters alleged in her petition.

9. Though a judgment record imports absolute verity and is not subject to collateral attack, a judgment concludes only parties and their privies, and an estoppel arising therefrom operates only on such parties and privies.

10. Estoppels are reciprocal and the bar resulting from an estoppel arising from a judgment must be mutual to the parties in the later action.

11. Great latitude is allowed in the reception of circumstantial evidence, and everything that tends to connect the supposed evidentiary fact with the factum probandum is admissible to prove that fact.

12. The competency of a collateral fact to be used as a basis of legitimate argument is not to be determined by the conclusiveness of the inferences it may afford in reference to the fact to be proved, it being enough if it tends, even in a slight degree, to elucidate the inquiry or to assist though remotely, to a determination probably founded in truth.

13. In action on life insurance policies, where insured had been missing seven years, held that any fact or circumstance relating to insured's character, habits, condition, affections, attachments, prosperity, and objects of life, which usually control the conduct of men, and are the motives of their actions, was, so far as it tended to characterize his disappearance or throw light on his intentions, competent evidence on the ultimate question of his death.

14. In such action, evidence of statements made by insured on the day of his disappearance about where he was going and what he was going to do, what he telephoned plaintiff about a visit from his mother and other circumstances tending to characterize his departure and its purpose held admissible as bearing on his intentions.

15. In such action, where plaintiff's counsel stated in connection with offer of evidence that claim had been made by defendant company's representatives that plaintiff, whose husband, the insured, had disappeared, knew where he was, and where statement was not in terms withdrawn and jury was not instructed to disregard it, such statement held to constitute reversible error, since it brought to attention of jury unproved and prejudicial matter.

16. In the absence of a contract concerning it, interest does not begin to run until the defendant is shown to be in default.

17. The purpose of a proof of death required in life insurance contracts is to enable the insurer to form an intelligent estimate of its rights and liabilities under its policy.

18. The requirement in a life insurance contract that proof of death of insured be furnished is inserted for the sole benefit of the insurer, and can be waived by it.

19. Unless fixed by the policy, there is no precise standard to which proof of death of insured must conform.

20. In cases where insured has disappeared, when a bona fide attempt to comply with proof of death requirement in life insurance policy has been made, the insurance company should point out any defects therein if it would rely on them.

21. In action on life insurance policy, where claimant, whose husband, the insured, had disappeared, had filed statement regarding disappearance on blank furnished by defendant company and given all information requested by company so far as she was able, and no question had been raised as to sufficiency of proof, held that proof of death was sufficient in law and that company had waived further proof, so that plaintiff was entitled to interest on commuted value of policy, as against claim verdict of jury would be first proof thereof.

22. In such action, charge of court that plaintiff was entitled to interest on commuted value of policy if jury found that insured died prior to date when extended insurance under lapsed policy expired, held without error, though evidence as to waiver of further proof of death and estoppel of insurer to deny sufficiency of proof furnished might have made jury question on these issues, since point was not raised.

23. In such action, where cause of action on policy, if found to exist, arose a long time prior to date fixed by court for purpose of charging interest on commuted value of lapsed policy, defendant could not complain of instruction stating amount of interest payable if jury found for plaintiff.

24. In such action, question of sufficiency of proof of death held for court.

25. That court gave a correct charge on an issue would not avail to defeat exception to a subsequent erroneous instruction on the same issue, for when inconsistent instructions are given, it will be taken that the jury have felt at liberty to follow either of them.

26. Presumption of life continues throughout seven-year period following a person's disappearance, and at the end of that...