McKee v. Mutual Life Ins. Co. of New York

• Decision Date: 30 November 1943
• Docket Number: 27913.
• Citation: 51 N.E.2d 474,222 Ind. 10
• Parties: McKEE v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: Indiana Supreme Court

51 N.E.2d 474

222 Ind. 10

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

No. 27913.

Supreme Court of Indiana

November 30, 1943

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 &amp 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 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 testimony of a single witness, there is no reason why the jury should not subject the credibility of such witness to proper tests, even though his testimony is not contradicted by that of any other witness. If, as a result of such tests, honestly and fairly applied, a jury are unable to believe the testimony of such witness, it is not only within their power, but also it is their duty, to reject it. * * * We would not be understood as holding that a jury, under any circumstances, has a right arbitrarily to reject the testimony of the witnesses.'

The same conclusion was reached in Wm. P. Jungclaus Co. v Ratti, 1917, 67 Ind.App. 84, 118 N.E. 966, 967, where the following language may be found: 'Though it be granted that the evidence offered by appellant as to the cause of such delays was undisputed, the trial court had a right to take into consideration all the other evidence in the case, including circumstances and surroundings that might in any way affect the weight or credibility of such evidence. * * * While appellant introduced witnesses who testified in effect that appellees and contractors employed by them caused delays in the completion of said work, the total of which equaled, or more than equaled, the entire delay in such completion, and while these witnesses were not expressly contradicted by other witnesses, their evidence or any part thereof, like any other...