153 Va. 468 | Va. | 1928
Lead Opinion
delivered the opinion of the court.
Mary L. Botto, plaintiff in the court below, fiíed her notice of motion to recover the sum of $1,000.00, alleged to be due her as beneficiary under a policy of insurance issued by the Metropolitan Life Insurance Company upon the life of her husband, William Joseph Botto. There was a trial by a jury, which found a verdict for the plaintiff, and judgment was entered thereon by the court.
The facts relied upon by the plaintiff, as shown by the record, are as follows:
The plaintiff, Mary L. Botto, was the wife of William J. Botto, insured by the defendant in the amount of $1,000.00, and beneficiary under the said policy. On January 5, 1919, Sunday, the insured, dressed in his usual working clothes as a lineman, with his tools and the spikes on his feet as an electrical worker, bade his family good-bye to go back to his work in North
The plaintiff employed counsel, and on January 21, 1926, more than seven years after the disappearance ■of William Botto, the insured, defendant was requested to furnish blanks for proof required by the policy to be Hied with the defendant. Again, on May 21, 1926, defendant was requested to furnish said blanks, which it refused to do. On January 21, 1927, defendant was again requested to furnish said blanks and refused to ■do so. Suit was filed in March, 1927, by the plaintiff against defendant.
The defendant introduced as witnesses in the trial Thomas Botto and Mrs. Margaret Hirshberg, brother and sister of the insured, who testified that the insured was seen alive by them in the year 1925.
To determine the correctness of the judgment of the lower court requires a consideration of section H239 of the Code of 1919, as amended. Michie’s Code, 1924, section 6239. The pertinent part of this statute
Plaintiff bases her right to recover upon the presumption of death, arising out of the statute, after an absence from the State for a period of over seven years, without any tidings from the insured. The contention of the defendant is that the presumption of death is rebuttable and that it has fully met this presumption by the introduction of evidence that the insured was-alive during the seven year period.
In Evans v. Stewart, etc., 81 Va. 738, it is held that a person who absents himself from the State for over seven successive years is presumed to be dead, and the' party asserting he is living must prove it.
In Magness v. Modern Woodmen, 146 Iowa 1, 123. N. W. 169, it is said: “The presumption of death from long absence is of course not conclusive; but when it is shown to have continued for seven years or more' unaccompanied by circumstances which reasonably account for his disappearance on a theory not involving-his death, it becomes sufficiently strong to cast the burden of rebutting it upon the party asserting the continuance of life. 3 Elliott’s Evidence, paragraph 2010; 1 Greenleaf Evidence, paragraph 41; Cowan v. Lindsay, 30 Wis. 589. Slight evidence may sometimes be sufficient to rebut the presumption of death; but ordinarily it is a question for the triers of fact to determine whether the presumption shall prevail. In short, the circumstances both for and against the theory of death are to be taken into consideration, and therefrom the truth arrived at as nearly as may be possible under
In our opinion, the plaintiff, upon whom rested the burden of meeting the statutory requirements, has successfully borne the same. Upon the close of the plaintiff’s case, had the defendant been content to submit the case to the jury, there could have been but one result — a verdict for the - plaintiff — upon which the court would have been warranted in entering judgment. The same result would have followed if a demurrer to the evidence had been interposed by the defendant.
To overcome the presumption of death, after •continued absence for a period of seven years, the burden was upon the defendant to introduce proof satisfactory to the jury that during the seven year period the insured was alive. This the defendant claims to have- done. Let us, therefore, look to the ■evidence to ascertain if the jury were warranted in finding a verdict contrary to it.
Thomas Botto, a brother of William J. Botto, the insured, testified that he saw the said William J. Botto twice in the year 1925, at an address on Pearl ¡street in the city of Baltimore; that on both occasions the said William J. Botto was in good health; that he had never had inquiry made of him by Mrs. Mary L. Botto, or anyone in her behalf, as to the whereabouts ■of said William J. Botto, and that he did not volunteer any information to Mrá. Mary L. Botto for the reason that she was not on good terms with him or his family; that had he been asked by her anything about William J. Botto, he would have furnished the information requested; that at the time of his father’s death in 1923, an attempt had been made to locate William J. Botto, which was unsuccessful, and that said William J. Botto was not present at his father’s funeral.
Mrs. Margaret Hirshberg then testified that she was the sister of the insured, William J. Botto; that she resides at No. 2401 east Grace street, and was residing there at the time her brother, William J. Botto, left on January 5, 1919, and that he then resided at No. 2516 east Grace street; that early in the year 1925, she-received news through a friend that her brother, William J. Botto, was desperately ill in the city of
On cross-examination, Mrs. Hirshberg stated that at the time she saw her brother at the address on Pearl street she did not go into the house, which in front was a restaurant, but that her brother saw her when she approached the building and came out to meet her and that they stood on the corner and talked. She stated that she got her information as .to his whereabouts from somebody at Curtis Bay.; that he had lived at Curtis Bay and that the people there told her where to find him. She further stated that she had a friend living in Baltimore, Mrs. Richard Townsend, P. O. R. P. D. No. 6, Baltimore. She stated further that she did not give this information to plaintiff because plaintiff had not requested it of her. She was asked who else besides the family knew anything about where Botto lived, and answered: “Many of his friends,” but .she apparently could not name one who did know. She further said that she did not advise Mrs. Mary J. Botto, the plaintiff, or her children, that she had com
After so long a separation from their brother, the meeting described by these two witnesses seems grotesque. Neither of them could tell his correct address, his occupation, or repeat one word that would throw light on the question of his disappearance. As far as the record shows, this brother and sister did not communicate the fact of their brother’s presence in Baltimore to anyone. Mrs. Hirshberg, during her examination, stated that she had received a letter from the insured about three months prior to the trial. This letter, properly authenticated, would no doubt have settled the question in issue, but it was not produced or its absence accounted for. Both Botto and Mrs. Hirshberg testified that they were not on '‘speaking terms” with the plaintiff. This fact the jury had a right to consider in determining whether or not they were biased or prejudiced.
In addition to the two witnesses mentioned, the defendant introduced Prank Richeson, who testified that he is a notary public in the-city of Richmond, Virginia, and was such November 3, 1919; that on that day a man was introduced to him in the city of Richmond as William J. Botto, and that he then, at said man’s request, as notary public, took an acknowledgment of his signature to a paper writing then and there produced; that he did not personally know William J. Botto, but that his certificate of acknowledgment which was on the paper produced was genuine.
There is another consideration which no doubt influenced the verdict of the jury. Introduced in evidence was a Tetter, dated February 10, 1927, written by the assistant secretary of the defendant to counsel for plaintiff, which contained this language:
“We have your letter of January 21 regarding the above ease.
“The home office inspector to whom we delegated this case for investigation last summer after calling at your office with regard to it; located and interviewed the insured under the policy who readily admitted his identity. In view of this development, there is no presumption of death.”
Also a letter dated February 21, 1927, written by the assistant secretary to the counsel for plaintiff was introduced, which is as follows:
“Replying to your letter of February 21.
“We are not aware that we are under obligation to disclose to you the whereabouts of the insured or where our inspector saw and conversed with him. Our efforts to locate him involved considerable expense. We believe that similar investigation on your part may result as successfully.
“We see no reason to modify the advice previously communicated to you that there is no presumption of death in this case.”
It was in the power of the defendant to have
While the defendant practically concedes that the jury are the triers of fact, it is most strenuously urged that they are bound by the testimony of their unimpeached witnesses. It is true as a general proposition that the evidence of an unimpeached witness, if not inherently incredible, should be believed; but the fact that a witness has not been impeached — employing the term in its common acceptation — is not conclusively binding upon the jury. The jury are the judges of the credibility of the witness and they have the right to determine from his appearance on the stand, his manner of testifying, his candor and fairness, his contradictions, if any, what weight shall be given to his evidence. Horton’s Case, 99 Va. 855, 38 S. E. 184.
In Wigmore on Evidence, section 2034, it is said: “The mere assertion of any witness does not of itself need to be believed, even though he is unimpeached in any manner; because to require such belief would be to give a quantitive and impersonal measure to testimony.”
In Charleston Ins., etc., Co. v. Corner, 2 Gill (Md.) 411, the syllabus of the case states: “The jury have the power to refuse their credit to parol testimony, and no action of the court should control the exercise of their admitted right to weigh its credibility.” Conrad v. Williams, 6 Hill (N. Y.) 444.
In Clopton’s Case, 109 Va. 818, 63 S. E. 1023, Judge
In C. & O. Ry. Co. v. Barger, 112 Va. 692, 72 S. E. 695, it is said: “A jury is not bound to accept as conclusive the testimony even of an unimpeaehed witness.”
Tested by the foregoing doctrine, it is manifest that the action of the trial court in overruling the motion to set aside the verdict of the jury and in refusing to enter judgment for the defendant, is without error.
It is also assigned as error that the trial court erred in refusing to give the following instructions asked for by the defendant:
“1. The court instructs the jury that if suit was brought before satisfactory' and sufficient proofs of the death of the insured were furnished to the Metropolitan Life Insurance Company, then they must find for the defendant.
“2. The court instructs the jury that the statements
These instructions sought to impose upon the jury the duty of determining the sufficiency of the proof of death, as a condition precedent to the right of action. No error was committed by the court in this regard. It was the province of the court to determine the question.
In Security Bank v. Equitable Life Society, 112 Va. 468, 71 S. E. 649, 35 L. R. A. (N. S.) 159, Ann. Cas. 1913-B, 836, Judge Keith, dealing with a similar question, said:
“One of the principal controversies raised in the ease is whether or not the preliminary proofs of death are to be passed upon by the court as constituting a condition precedent to the right to bring suit, or whether it is for the jury to determine whether or not they comply with the provisions of the policies, which re-, quired the plaintiff to furnish satisfactory proofs of death of the accused.
■ “We are of opinion that the weight of authority imposes the duty upon the court to determine, in the first instance, whether or not the proofs are satisfactory. ’ ’
The last assignment of error calls in question the action of the trial court in refusing to grant defend
“I, J. McD. Wellford, counsel for the defendant in the case of ‘Mary L. Botto v. Metropolitan Life Insurance Co.,’ do make the following affidavit: That subsequent to the trial of this case, at four o’clock in the afternoon of July 8th, I was called up on the telephone by Sergeant Frank I. Gentry of the Richmond police force, who then advised me that he had seen and talked with the insured, William J. Botto, in the year 1926; that he had known said William J. Botto all his life and that there could be no mistake as to identity. That by no reasonable diligence on my part, or on the part of the defendant company, could this evidence have been secured prior to the trial of the ease inasmuch as neither I nor said defendant company had any knowledge that Sergeant Gentry knew the insured or had seen him in 1926. That said evidence is material in its object and such as ought, on another trial, to produce an opposite result on the merits; and that said evidence is not merely cumulative or collateral.”
Two witnesses testified upon the trial that they had seen the insured alive. The defendant was afforded the opportunity to put upon the witness stand its agent who “had located and interviewed” the insured, but declined to accept the same. The evidence set forth in the affidavit was cumulative and corroborative. The plaintiff testified in the inception of the case that she had appealed in vain to the police department of the city of Richmond to ascertain the whereabouts of her husband. In the exercise of that diligence which the law requires of a litigant it seems to us that the in
As a general rule, the courts do not look with favor upon motions to grant a new trial on the ground of after-discovered evidence. Especially is this true where litigants have had—as they have in this case—an opportunity to fairly present their case to the jury.
Upon the whole case, we are of opinion that the question in issue was a jury question, which has been fairly submitted to the jury, and the verdict of the jury should not be disturbed.
Rehearing
ON REHEARING.
Richmond.
November 12, 1929.
This day came the parties, by counsel, and on motion of the defendant in error, it is ordered that the verdict and judgment be set aside, and this cause is remanded to the Law and Equity Court of the city of Richmond, Part II, for retrial by the court and jury on the single issue whether the insured, William J. Botto, was alive at any time during the period of seven years prior to the commencement of this action, with the burden of proof upon the plaintiff in error to prove that fact, and that the defendant in error do recover of the plaintiff in error her costs in this behalf herein expended.
Which is ordered to be certified to the said Law and Equity Court of ,the city of Richmond, Part II.
Remanded.