McKee v. Mut. Life Ins. Co. of New York, 27913.

• Decision Date: 30 November 1943
• Docket Number: No. 27913.,27913.
• Parties: McKEE v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: Indiana Supreme Court

222 Ind. 10
51 N.E.2d 474

McKEE
v.
MUTUAL LIFE INS. CO. OF NEW YORK.

No. 27913.

Supreme Court of Indiana.

Nov. 30, 1943.

Action by Wilford H. McKee against the Mutual Life Insurance Company of New York to recover disability benefits under a life policy. From a judgment for defendant, the plaintiff appeals.

Transferred from the Appellate Court under § 4-218, Burns' Ann.St.

Judgment affirmed.

[51 N.E.2d 474]

Appeal from Clay Circuit Court; John W. Baumunk, Judge.
B. C. Craig, of Brazil, and John M. Fitzgerald and Beasley, O'Brien, Lewis & Beasley, all of Terre Haute, for appellant.

Barnes, Hickam, Pantzer & Boyd, of Indianapolis, and Rawley & Stewart, of Brazil, for appellee.

SHAKE, Judge.

The appellant was the unsuccessful plaintiff in a suit to recover disability benefits under a policy of life insurance issued by the appellee. The only assigned error is on the overruling of the appellant's motion for a new trial, which asserted that the decision was not sustained by sufficient evidence; that the decision was contrary to law; and that 321 errors were committed in the admission and exclusion of evidence.

Since the judgment was for the appellee, the assignment that the decision was not sustained by sufficient evidence was inappropriate. A negative verdict or decision may not be attacked upon the ground that there is lack of evidence to support it. Wilson, Adm'x v. Rollings, 1938, 214 Ind. 155, 14 N.E.2d 905.

The motion for a new trial did not disclose the nature of the objections to the admission of the testimony and exhibits about which complaint is made. This court is now thoroughly committed to the view that no question as to the admissibility of evidence is presented for review, if the motion for a new trial fails to state the grounds of objection to the evidence. See Wise v. Curdes, 1942, 219 Ind. 606, 40 N.E.2d 122, and cases there cited.

The appellant contends that the decision is contrary to law because the uncontradicted evidence affirmatively discloses that he was totally disabled within the meaning of the policy sued on. The appellee insists, on the other hand, that this is of no avail, because the evidence relied upon by the appellant was oral and the burden of proof was on him; and that the evidence was conflicting.

In Cleveland, etc., R. Co. v. Starks, 1914, 58 Ind.App. 341, 106 N.E. 646, 653, it was

[51 N.E.2d 475]

said: ‘The jury are the judges, not only of the weight of the evidence, but also of the credibility of the witnesses. As the former rests upon the latter, in so far as concerns oral testimony, it follows that the evidence cannot be intelligently weighed, unless the credibility of the witnesses has first been determined. In fact, the evidence in a case, aside from the written or documentary, is gathered only from the credible oral testimony. When a material fact is supported only by the uncorroborated...