Sheller-Globe Corp. v. Sheller

• Decision Date: 15 December 1980
• Docket Number: No. 2-379A61,SHELLER-GLOBE,2-379A61
• Parties: CORPORATION and Equitable Life Assurance Society of the United States, Defendants-Appellants, v. Grace M. SHELLER, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 318

413 N.E.2d 318

SHELLER-GLOBE CORPORATION and Equitable Life Assurance Society of the United States, Defendants-Appellants, v. Grace M. SHELLER, Plaintiff-Appellee.

No. 2-379A61.

Court of Appeals of Indiana, Fourth District.

Dec. 15, 1980.

William E. Ervin, Peterson, Ervin & Barry, Hartford City, for defendants-appellants.

William W. Hinkle, Hinkle & Racster, Portland, for plaintiff-appellee.

CHIPMAN, Judge.

Grace Sheller, widow of Edward Sheller, sued her deceased husband's employer, Sheller-Globe Corporation (Sheller-Globe), and Equitable Life Assurance Society of the United States (Equitable) for the proceeds of a group life insurance policy issued by Equitable to Sheller-Globe's employees. After a bench trial the court entered judgment against both Defendants, concluding:

"Under the group life insurance policy issued by Equitable Life Assurance Society, any insured who died (sic) within thirty-one days following the termination of his employment would be covered under said policy and his beneficiary would be entitled to the death benefits. Since the decedent (Edward Sheller) died on March 18th, 1974, within the thirty-one day period following termination of his employment, pursuant to the terms of said contract the Plaintiff as beneficiary is entitled to the $20,000.00 death benefits.

The court further concludes that due to the negligence of Sheller-Globe in failing to properly advise decedent of his conversion privilege, the decedent was thereby denied his right of converstion (sic) which he would have exercised as would any IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Plaintiff recover from the Defendant, Sheller-Globe Corporation, and from the Defendant, Equitable Life Assurance Society of the United States, and each of them, the sum of $20,000.00 together with the costs of this action."

reasonable man under similar circumstances. As a direct result of the negligence of Sheller-Globe, the Plaintiff was damaged in the amount of $20,000.00.

Defendants appeal, raising the following issues for review: ¹

I. Whether the trial court erred by admitting certain testimony over Defendants' hearsay objection.

II. Whether there was sufficient evidence to support the trial court's determination that Edward was not given notice of his right to convert his group policy to an individual policy.

III. Whether the trial court erred in its determination of Edward's termination of employment date.

We affirm in part and reverse in part.

I. HEARSAY

The policy in question allowed an employee to convert his group policy to an individual policy within thirty-one days of termination of employment. ² During the trial of this cause Grace Sheller offered testimony of a Mr. Hutchins that Edward had told him he would not have a life insurance policy after his retirement. ³ The testimony was admitted over Defendants' hearsay objection.

As stated in McCormick, Evidence § 246, and quoted in Hall v. State, (1978) Ind.App., 374 N.E.2d 62, 64-5:

"Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter."

The testimony in question is hearsay if offered to prove Edward could not convert the policy or that Mrs. Robbins, an agent of Sheller-Globe, had so informed Edward. However, it is not hearsay if offered as a factual occurrence which is circumstantial evidence of Edward's belief that he could not convert his policy and not for the truth of the assertion. Such statements are not hearsay. Indianapolis Newspapers, Inc. v. Fields, (1970) 254 Ind. 219, 259 N.E.2d 651, cert. denied, 400 U.S. 930, 91 S.Ct. 187, 27 L.Ed.2d 190, State Farm Mutual Automobile Insurance Company v. Shuman, (1977) Ind.App., 370 N.E.2d 941.

Since the testimony could properly be admitted as evidence of Edward's state of mind, even though it could not be admitted for the truth of the assertion, there was no error in the court's overruling Defendants' hearsay objection. "If any item of evidence were relevant and admissible for one purpose and not for another, there was no error in their admission." Indianapolis Newspapers, Inc. v. Fields, supra at 676.

II. SUFFICIENCY OF THE EVIDENCE AGAINST SHELLER-GLOBE

Defendants contend there is insufficient evidence to support the trial court's determination that Sheller-Globe failed to properly inform Edward of his conversion right under the group life insurance policy. Their argument is premised on the assertion that Mr. Hutchins' testimony should have been excluded as hearsay. We have, in issue I, concluded there was no error in its admission. Thus, it must also be considered when reviewing the evidence for sufficiency.

On review this Court considers only the evidence which supports the trial court's judgment together with all reasonable inferences to be drawn therefrom. DeMayo v. State ex rel. Dept. of Natural Resources, (1979) Ind.App., 394 N.E.2d 258. We cannot reweigh the evidence nor judge the credibility of the witnesses. It is only where the evidence and inferences so considered lead to a decision contrary to the trial court's, that we will reverse. Orange-Co., Inc. v. Brown, (1979) Ind.App., 393 N.E.2d 192.

In October of 1973 Edward Sheller learned he had cancer and shortly thereafter he was unable to continue working. He entered the hospital January 15, 1974, and died March 18, 1974. The evidence portrayed Edward as a man concerned with the preparations necessary to make his future widow comfortable; before he entered the hospital he executed a will, installed a new furnace and sold the older of their two cars. He also had ample funds to pay the premium required to convert his group insurance coverage to an individual policy. However, Mr. Hutchins' testimony indicates Edward believed he could not convert the group policy.

We grant that all of the above evidence is circumstantial in nature and is in conflict with direct evidence from Mrs. Robbins that she had given Edward a copy of the policy provision which informed him of his conversion right, but he declined it as too expensive. Nonetheless, as stated above, it is not our position to reweigh the evidence, only to determine if there is evidence to support the trial court's decision. We believe from all the evidence the trial court could have reasonably concluded Sheller-Globe was negligent in discharging its responsibility to inform Edward of his conversion right under the group policy.

III. TERMINATION DATE OF EDWARD'S EMPLOYMENT

On January 31, 1974, Edward retired from Sheller-Globe pursuant to a policy of mandatory retirement on the last day of the month in which the employee reached sixty-five. On February 15, 1974, he received a final paycheck which indicated on its face it was for payment of the...