Tyrrell v. Prudential Ins. Co. of Am.
| Decision Date | 04 May 1937 |
| Docket Number | No. 701.,701. |
| Citation | 192 A. 184 |
| Court | Vermont Supreme Court |
| Parties | TYRRELL v. PRUDENTIAL INS. CO. OF AMERICA. |
[Copyrighted material omitted.]
Exceptions from Lamoille County Court; John S. Buttles, Judge.
Action by Mabel B. Tyrrell against the Prudential Insurance Company of America. Judgment for plaintiff, and defendant brings exceptions.
Reversed and remanded.
Argued before POWERS, C. J., SLACK, MOULTON, and SHERBURNE, JJ., and STURTEVANT, Superior Judge.
Theriault & Hunt, of Montpelier, for defendant. Wilson, Carver, Davis & Keyser, of Barre, for plaintiff.
This action is brought to recover on two life insurance policies issued by the defendant on the life of Lester M. Tyrrell, and payable to the plaintiff, then his wife. One of these, hereinafter referred to as the small policy, was dated December 28, 1925. The other, hereinafter referred to as the large policy, was dated June 23, 1924. Premium payments' were defaulted on both policies. The small policy went into extended insurance on December 23, 1929, at a commuted value of $1,048, for a period expiring December 31, 1938. The large policy went into extended insurance at a commuted value of $11,140, for a period expiring September 28, 1932.
The court directed a verdict for the plaintiff on the small policy for the sum above stated. It submitted to the jury the issue raised on the large policy, and a plaintiff's verdict was returned for the sum of $12,241, which included interest on the commuted value of $1,101.
The Tyrrells were married in 1909. They lived together at various places within and without this state until the spring of 1919, when Tyrrell was arrested at Waterbury, Vt., for stealing an automobile in California. He was taken back to that state, was tried, convicted, sentenced, and committed to San Quentin prison. While he was there confined, the plaintiff obtained a divorce from him in Lamoille county court. But soon after his release from prison in 1923, the plaintiff met him in Detroit, Mich., and they were remarried. They lived together thereafter in Detroit and elsewhere until October 31, 1927. In the meantime, two children had been born to them, one in 1915, and the other in 1925. While they were living at Grosse Point, Mich., and on the date in October just mentioned, Tyrrell disappeared, and he has never been seen or heard from since.
There was evidence below tending to show that Tyrrell was a kind, thoughtful, and affectionate husband and father, and that his social, financial, and domestic circumstances were so satisfactory as to make it highly improbable that he would deliberately and permanently desert his home and family.
On the other hand, the facts set up and sworn to by the plaintiff in her petition for a second divorce from Tyrrell brought in Michigan and executed March 2, 1928, which facts the jury were at liberty to accept as true, together with other evidence regarding his domestic situation, his finances, and his criminal and fraudulent practices afforded evidence tending to show that he did so desert his family.
The situation presented at the trial below was such that two well-established presumptions were applicable. First, there was the presumption of the continuance of life, which, as we shall see, continued for seven years from the date of Tyrrell's disappearance; and, second, there was the presumption of death, which, as we shall see, arose at the expiration of that period.
The burden of proof was on the plaintiff, of course. In order to recover on the large policy, she was required to establish the fact that Tyrrell died while that policy was in force, that is to say, on or before September 28, 1932. In order to recover on the small policy, she only had to establish the fact that Tyrrell was dead when the suit was brought, that is to say, July 3, 1935.
Of necessity, she would be entitled to recover on the small policy, if she established her right of recovery on the large one; but obviously, the converse of this statement would not be true.
The defendant asked the court to require the plaintiff to elect whether she would stand upon the claim that Tyrrell died on or soon after the date of his disappearance, or upon the presumption of his death arising from his unexplained absence for a period of seven years. The court refused to comply with this request, and the defendant excepted.
The ruling was free from error. There were two issues before the jury. The plaintiff was entitled to the advantage she could get from any evidence she could produce that would be relevant to either issue. To prove a right of recovery on the large policy, she could avail herself of all the circumstantial evidence she could find tending to show that Tyrrell died before that policy finally lapsed. And though she failed on that issue, she was not out of court, for on the question of liability under the small policy, the presumption of death operated in her favor, and if it was rebutted by evidence, she would be entitled to resort to such circumstantial evidence as she could produce.
As has already appeared, the small policy was in force at the time of the trial. The seven years that Tyrrell had been absent and unheard from had then elapsed. If there had been no evidence introduced tending to show that he was alive, the granting of the plaintiff's motion for a verdict on that policy would have been warranted. The death of Tyrrell was a fact to be proved. The burden of proof was on the plaintiff, but the presumption, alone, was enough to shift the burden of evidence to the defendant and require it to go forward with evidence, direct or circumstantial, tending to show that Tyrrell was not dead as presumed by the law. This the defendant did. Though it gave no direct evidence to that effect, as we have seen, it gave evidence tending to show that his disappearance and continued absence was due to the unsatisfactory conditions hereinbefore referred to.
There was enough of such evidence to send the question to the jury, and it was error to order a plaintiff's verdict on the small policy.
For a very similar reason, it was not error for the court to refuse to grant the defendant's motion for a verdict on the small policy. The plaintiff's evidence tended to show that the absence of Tyrrell could not reasonably be explained on any other theory than his death.
While the plaintiff was giving her testimony, she was confronted with a certified copy of her divorce proceedings in Wayne county, Mich., instituted in July, 1928. This document shows that her petition therein charged Tyrrell with "gross and extreme cruelty," with applying to her vile and opprobrious epithets, with being untrustworthy, and with other marital misdoings. This petition was signed and sworn to by the plaintiff. It also shows that the decree of divorce was granted upon testimony taken in open court, the charges made by the plaintiff being found to be true.
The plaintiff was allowed to explain that her reason for applying for this divorce was merely to get the title into her name of certain real estate then standing in the joint names of herself and husband; and that she signed and swore to the petition without reading it or knowing its contents.
To the admission of this explanatory and exculpating evidence, the defendant excepted.
The exception was based upon the claim that a judgment record imports absolute verity, is not subject to collateral attack, and that the plaintiff was as much estopped from denying the matters alleged in her petition as she was from denying the decree itself. The law relied upon by the defendant is sound enough. But the trouble with its position is this: Judgments conclude only the parties and their privies. The estoppel arising therefrom operates only on such parties and privies. Estoppels are reciprocal, and the bar resulting therefrom must be mutual to the parties in the later action. Bigelow, Estoppel (6th Ed.) 127; 2 Herman, Estoppel, § 586. This defendant is a stranger to the divorce proceedings, and cannot invoke the estoppel against the plaintiff. For it is written that: "Estoppel is reciprocal; for he that shall not be concluded by the record * * * shall not conclude another by it." Alexander v. Walter, 8 Gill (Md.) 239, 50 Am.Dec. 688, 692, quoting Lord Coke as above; Glasgow v. Baker, 72 Mo. 441, 446; Bigelow, Estop., 364; 2 Herman, Estop., supra; First National Bank v. Northwestern Bank, 152 Ill. 296, 38 N.E. 739, 26 L. R.A. 289, 43 Am.St.Rep. 247, 253; Blodgett v. Perry (Mo.) 10 Am.St.Rep. 307, 311; Deery's Lessee v. Cray, 5 Wall. (U.S.) 795, 18 L.Ed. 653, 655. See Capen's Adm'r v. Sheldon, 78 Vt. 39, 46, 61 A. 864; Girard v. Vt. Mut. F. Ins. Co., 103 Vt. 330, 339, 154 A. 666.
This exception is not sustained.
The plaintiff was allowed to show what Tyrrell said about where he was going and what he was going to do the day he disappeared, what he telephoned the plaintiff about a visit from his mother, and other circumstances tending to characterize his departure from town and its purpose. The defendant excepted.
The fact of Tyrrell's death, as well as the date of it, of necessity, had to be shown by circumstantial evidence. As was said by Rowell, C. J., in State v. Ryder, 80 Vt. 422, 426, 68 A. 652, 654, 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...
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