Roberts v. Wabash Life Ins. Co.

• Decision Date: 15 October 1980
• Docket Number: No. 1-1179A307,1-1179A307
• Citation: 410 N.E.2d 1377
• Parties: Geneva ROBERTS, Plaintiff-Appellant, v. WABASH LIFE INSURANCE CO., Defendant-Appellee. (2 cases) Geneva ROBERTS, Plaintiff-Appellant, v. MODERN WOODMEN OF AMERICA, Defendant-Appellee. Forrest ROBERTS et al., Plaintiffs-Appellants. v. OCCIDENTAL LIFE INSURANCE CO., Defendant-Appellee.
• Court: Indiana Appellate Court

Page 1377

410 N.E.2d 1377

Geneva ROBERTS, Plaintiff-Appellant, v. WABASH LIFE INSURANCE CO., Defendant-Appellee. (2 cases)

Geneva ROBERTS, Plaintiff-Appellant, v. MODERN WOODMEN OF AMERICA, Defendant-Appellee.

Forrest ROBERTS et al., Plaintiffs-Appellants. v. OCCIDENTAL LIFE INSURANCE CO., Defendant-Appellee.

No. 1-1179A307.

Court of Appeals of Indiana, First District.

Oct. 15, 1980.

Don M. Robertson, Bunger, Harrell & Robertson, Bloomington, for plaintiffs-appellants.

Frank A. Barnhart, Baker, Barnhart & Andrews, Bloomington, for defendants-appellees.

RATLIFF, Judge.

STATEMENT OF THE CASE

Geneva Roberts filed actions against Wabash Life Insurance Co. and Modern Woodmen of America, and her four sons filed an action against Occidental Life Insurance Co. in an effort to collect the proceeds of policies which had been issued insuring the life of their husband and father, Clarence Roberts. The Brown Circuit Court entered judgment in favor of the insurance companies after trial of the consolidated actions. We affirm.

FACTS

Clarence Roberts and his wife, Geneva, lived approximately three miles north of Nashville, Indiana, at the intersection of Road 135 and Grandma Barnes Road. Located west of their house was a barn which they utilized as a garage and storage area. On November 18, 1970, Ella Cummings, a neighbor of Clarence Roberts, observed leaves burning at the base of a tree located near the barn on the Roberts' property. In retrospect Mrs. Cummings surmised that she could have extinguished the small fire herself if she had stopped at that time. Instead, she went to her home and called the fire department at 6:15. When the fire engine arrived at 6:30, the barn was already destroyed; witnesses recalled that the fire spread rapidly through the structure. Several vehicles were parked in the east portion of the barn. Neighbors and passers-by managed to save only one of the vehicles, Clarence Roberts' pick-up truck.

Because of the limited water supply, the firemen directed their efforts primarily toward protecting nearby buildings. Eventually they moved across the debris spraying water to cool the ashes. Their path led them to a shotgun lying across the charred remains of a body.

The Brown County coroner took the body to Indianapolis for an autopsy. Funeral services were conducted for Clarence Roberts, and the body was buried at a local cemetery. Because the investigation of the fire produced a long list of perplexing questions for which the investigators could not find plausible answers, the body was exhumed on December 21, 1970.

After the wife and sons of Clarence Roberts were unsuccessful in their attempts to collect approximately $640,000 in life insurance proceeds, they filed actions against the insurance companies. The evidence at trial reflected contrasting images of Clarence Roberts.

Clarence Roberts' attorney and physician described Roberts as a very civic-minded person who enjoyed an excellent reputation in the community. During the late 1960's, Clarence Roberts experienced financial problems due to losses suffered by several grain elevators which he owned. Lawsuits were filed against him during the summer In June 1970 Clarence Roberts hinted of suicide during a conversation with his attorney. After discussing but rejecting the possibility of filing a petition in bankruptcy, Roberts told another attorney on November 3, 1970, "... my widow will be the richest one in Brown County."

of 1969. Roberts reportedly became increasingly despondent.

Some persons surmised that Clarence Roberts accidentally set the barn afire while shooting himself. Roberts kept gasoline for his lawn mower in the barn, and that fact was offered as an explanation for the rapid burning of the structure. The autopsy revealed no gunshot wound. Although the shotgun had been fired, the position of the gun over the body was not compatible with the substantial recoil which would have followed its firing.

Clarence Roberts obtained a loan from Wabash Life Insurance Co. in 1967 or 1968 for the purpose of financing construction of an apartment complex. The relationship turned into a fiasco. Wabash eventually alleged that Roberts had submitted altered bills and fictitious bills for which Wabash had paid Roberts. At the time of trial Wabash estimated that the fraudulent bills totalled a minimum of $131,000 and perhaps more than $200,000.

Alvin Haggard, who owned Al's Friendly Tavern, had known Clarence Roberts for forty years. Roberts confided in Haggard concerning his financial problems. According to Haggard, Roberts "wanted to get out of the mess he was in." Haggard never heard Roberts mention suicide. In mid-September 1970 Roberts showed Haggard a card for a Swiss bank account. Clarence Roberts told Haggard that Roberts had more than $100,000 on deposit in his own Swiss bank account.

Several people who were acquainted with Clarence Roberts saw Roberts in Morgantown on the morning of November 17, 1970. Roberts was accompanied by a man who was not known by Roberts' friends in Morgantown. The man, who was approximately the same size as Roberts but older than Roberts, was wearing a dirty brown plaid shirt. The stranger suffered some sort of seizure while in Morgantown. Clarence Roberts put the man into Roberts' car and drove toward Nashville.

Early in the afternoon of November 18, 1970, a bank officer went to the home of Clarence Roberts. He wanted to discuss with Roberts a note on which the bank suspected Roberts had forged the signature of his brother, Carson Roberts. Clarence Roberts, who was aware of the bank's suspicions, did not respond to the knock on the door.

Charles Roberts saw his cousin, Clarence Roberts, mulching leaves at Clarence Roberts' home late in the afternoon of November 18, 1970. Charles talked with Clarence briefly. Clarence, who was wearing a solid-color blue shirt, commented that his wife, Geneva, and his son, Loren, had gone to Columbus for supper. Clarence invited Charles to join him for a sandwich, but Charles declined the invitation. Charles departed. Fifteen minutes later, Charles Roberts received word of a fire at Clarence Roberts' property. Charles returned to Clarence's property approximately twenty-five minutes after Charles' departure; the roof of the barn had already collapsed due to the fire.

The Brown County coroner was concerned with establishing identity as well as cause of death for the body found amidst the debris of Clarence Roberts' barn. The body was severely burned, and the only distinctive piece of clothing to survive the fire was a portion of a brown plaid shirt. Dr. Benz, who performed the autopsy, deemed definite identification of the body impossible. Dr. Benz noted an absence of carbonous material in the respiratory tract and an absence of internal burning of the respiratory tract, but tests showed the presence of 80-86% carbon monoxide in the blood. Dr. Benz opined that the person had died from the carbon monoxide intoxication prior to the fire.

In December the bank repossessed Clarence Roberts' pick-up truck. The bank's representative soon became aware of a massive On the morning after the fire, the coroner located Clarence Roberts' Masonic ring beneath several inches of ashes. The ring showed little fire damage. An expert witness testified that the solder in the ring should have melted at a much lower temperature than the temperature required to disintegrate the fingers, hands, and arms. The witness, John Kennedy, studied photographs which had been taken during and after the fire and also examined some of the bones from the body. Kennedy believed that the area where the body was found had been saturated with flammable liquid which caused an accelerated rate of burning. Kennedy expressed the opinion that the body had been soaked with a flammable liquid and burned after the limbs had been removed.

leakage of fumes into the cab of the truck. Inspection revealed thirty or more holes in the exhaust system. The holes looked as if they had been made with a hammer and punch.

A blood sample taken from the body was reported as type AB. Clarence Roberts' military records indicated that his blood type was B. The Roberts challenged the reliability of the blood-typing efforts and also suggested that military records frequently are inaccurate.

X-rays from Clarence Roberts' medical records were compared with x-rays taken of the body. The expert witnesses had differing opinions concerning the validity of the comparison as well as the similarities and dissimilarities detectable by the comparison.

A tooth discovered near the body was identified as a lower right second molar. Clarence Roberts' lower right second molar had been removed several years prior to the fire. The Roberts' witnesses insisted that the tooth could be a first molar rather than a second molar. Other witnesses pondered the question of why other teeth had not been found.

Donald Barrett testified that Clarence Roberts had been in Barrett's tavern in Mentone, Indiana, at least twenty times prior to November 18, 1970. He was usually with a woman who was not Geneva Roberts. Barrett testified that Roberts and that woman were in his tavern in April 1972. Other acquaintances of Clarence Roberts testified that they saw Roberts in 1974 and in 1975.

Radiologists, anthropologists, pathologists, dentists, law enforcement officers, investigators, relatives, and friends offered differing opinions as to whether the body found on November 18, 1970, was that of Clarence Roberts. The trial court ultimately entered judgment in favor of the insurance companies in the actions filed by the wife and sons of Clarence Roberts.

ISSUES

1. Did the Roberts prove by a preponderance of the evidence that the body which was found amidst the debris on Clarence Roberts' property on November 18, 1970, is the body of Clarence Roberts?

2. Does the evidence lead solely to a conclusion that the Roberts are entitled to the relief which they seek?

3. Did ...