50 Ind. App. 534 | Ind. Ct. App. | 1912
— ’Appellee recovered a judgment on a policy of insurance issued by appellant on tbe life of Miebael Broderick.
The complaint was in two paragraphs, and the only substantial difference between them is that the first paragraph' avers that Michael Broderick died on or about July 1, 1903, while the second paragraph does not allege the death of Broderick, but avers that “on or about the --day of August, 1901, the said Broderick left the city of Indianapolis and went to the city of St. Louis in the state of Mis
The only error assigned is the action of the trial court in overruling appellant’s motion for a new trial; and the only questions presented by the brief of appellant are that the decision of the court is not sustained by sufficient evidence, and that the decision of the court is contrary to law.
To sustain the first paragraph of complaint the evidence must prove as a fact that the assured was dead before the commencement of the action; but to sustain the second paragraph it was not necessary to prove that such assured was in fact dead. Evidence showing that the assured had absented himself from his usual place of residence and gone to parts unknown for a period of five years would be sufficient to sustain the allegations of the second paragraph, provided the facts attending such disappearance and absence were such as to give rise to the presumption of death as provided by §§2747, 2748 Burns 1908, §2232 E. S. 1881, Acts 1883 p. 209.
The only other question is the sufficiency of the evidence to sustain the deeison on the first paragraph of complaint. If the evidence is sufficient to authorize the court to find as a fact that Michael Broderick was dead before the commencement of the action, or if the facts proved were sufficient to warrant an inference of such fact, then the decision can be sustained on this paragraph.
If it is known, however, that he established a fixed residence abroad, proof that his family and friends have heard nothing from him for seven years will not be sufficient to establish the presumption of his death. In addition to this fact, it must be shown that due inquiry was made at the place where he had established such residence, and that no
In Eagle’s Case (1856), 3 Abb. Pr. 218, it was said that if it was attempted to apply the presumption short of seven years, special circumstances would necessarily have to be proved; as for -example, that at last accounts the person was dangerously ill or in a weak state of health; was exposed to great perils of disease or accident; that he embarked on a vessel which has not since been heard from, though the length of the usual voyage has long since elapsed. In all such cases the circumstances are sxxfficient to warrant the submission of the question of the fact of death to the detex*mination of the court or jury trying such issue.
There are cases, however, which hold that circumstances other than that of particular peril calculated to destroy life may be sufficient to justify the inference of death. Tisdale v. Connecticut Mut. life Ins. Co. (1868), 26 Iowa 170, 96 Am. Dec. 136; John Hancock Mut. Life Ins. Co. v. Moore (1876), 34 Mich. 41; Supreme Tent, etc., v. Ethridge
The case of Tisdale v. Connecticut Mut. Life Ins. Co., supra, is a leading case on this point. The facts in that case are that the party on whose life the policy was issued was a married man about thirty years of age, of exemplary habits, excellent character, of fair business prospects, respectably connected, and of the most happy domestic relations. He had the fullest confidence of his friends and the entire affections of his wife, and was living in apparent happiness, with no apparent cause of discontent with his conditions which would have influenced him to break the domestic and social ties which bound him so pleasantly to his home. In the statement of the ease it was said: “Visiting Chicago, * * * upon business, he was last seen by an acquaintance on the corner of Lake and Clarke streets in that city, about 3 o’clock p.m. of that day. No trace of him was afterward discovered, though his friends made every effort to find him and ascertain the cause of his mysterious disappearance. A large reward was offered through the newspapers for information that would lead to his discovery, either dead or in life. The detective police were employed to search for him without results. No tidings have been received of him, and not the faintest trace of the cause or manner of his disappearance has been discovered. He gave no intimation to any one of an intention to absent himself; and the latest declaration of his intentions was to the effect, that he expected to leave Chicago the day of his disappearance to join his wdfe at Dubuque. He owed no debts amounting to any considerable sum, and had made payment of some small ones about the day of his disappearance. His valise, containing clothing and other articles commonly carried by travelers, was found at his hotel. His bill there was unpaid. ’ ’ It was held by the Supreme Court, in reversing the
"We quite agree with the rule of law announced above, and the rule has been adopted by this court and applied in the case of Supreme Tent, etc., v. Ethridge, supra; but the rule is not applicable to the state of facts disclosed by the evidence in this ease.
While the facts shown in this ease would be sufficient, after a lapse of seven years, to raise the presumption of death, there are no special circumstances from which death may be inferred as a fact within the doctrine of the case of Tisdale v. Connecticut Mut. Life Ins. Co., supra. In this case the assured was not temporarily away from his family on business or pleasure at the time they lost trace of him, but he had been employed in St. Louis for eighteen months •from that time. It was not shown that he had expressed any immediate intention of returning to Indianapolis, or that there was anything sudden or mysterious in his disappearance. On ceasing to hear from him, no immediate search was made to ascertain his whereabouts, the only effort to find him being made two or three years later. Nothing is shown as to his character, his habits, his affections, his attachments or his business and objects in life. We think that the evidence on this branch of the case is not sufficient to warrant the court in finding the death of the assured as a fact.
It is claimed by appellee that there is some direct evi
In some jurisdictions the rule is that hearsay evidence on questions of pedigree is admissible only in cases where some matter of pedigree is the direct subject of the suit; but in this State and in many other states it has been held that such declarations as to facts of family history are admissible, not only in litigation where- the issue on which the evidence is offered directly involves a question of descent as pedigree, but also in cases where the question of pedigree is not directly involved. Collins v. Grantham, (1859), 12 Ind. 440; 1 Elliott, Evidence §370 and cases eited.
In one case the rule was relaxed when it appeared that the deceased had no known kindred. In that case, reputation among the acquaintances of the person alleged to be dead was admitted. Ringhouse v. Keever (1869), 49 Ill. 470.
The declarations of persons not members of the family of the person whose death is the subject of inquiry are not competent to prove the death of such person. Jackson v. Browner (1820), 18 Johns. 37; Dudley v. Grayson (1827), 6 Monroe (Ky.) 259; Wilson v. Brownlee, Homer & Co. (1867), 24 Ark. 586, 91 Am. Dec. 523.
The second reason is that the fact concerning which the declaration was made was not one of remote origin and which was known only by reputation and family tradition. If Michael Broderick was dead, his death occurred so recently that all of the facts and circumstances tending to establish it were known to the members of his family who were living and who testified at the trial of this case. Under such a state of circumstances it has been held that it is not competent to prove a general reputation or belief in a family that one of its members is dead. Vought v. Williams (1887), 46 Hun 638; Fidelity Mut. Life Assn. v. Mettler, supra.
In the case last cited it was held that proof that there was a general belief and repute in the family of the assured to the effect that he was dead was not competent to establish the fact of his death. Speaking on the subject the court said: {5But we do not think the evidence was competent to
The testimony of Jeremiah Sullivan, as to what his brother told him in reference to the death of assured, is hearsay, and does not fall within any of the recognized exceptions to the rule excluding such evidence.
On the other hand, a number of courts adhere to the rule that ordinary hearsay testimony is not only inadmissible, but wholly without probative value, and its introduction without objection does not give it any weight or force whatever in establishing a fact. Eastlick v. Southern R. Co. (1902), 116 Ga. 48, 42 S. E. 499; State Bank v. Wooddy (1850), 10 Ark 638; Lehman v. Frank (1897), 46 N. Y. Supp. 761, 19 App. Div. 442.
The precise question here under consideration has never been passed on by either the Supreme or Appellate Courts of this State, but both courts frequently have held that secondary evidence, when admitted without objection, is sufficient to sustain a verdict. Stockwell v. State, ex rel. (1885), 101 Ind. 1; Littler v. Robinson (1906), 38 Ind. App. 104, 77 N. E. 1145; Moore v. Hubbard (1896), 15 Ind. App. 84, 42 N. E. 962; Hommell v. Gamewell (1838), 5 Blackf. 5; Schenck v. Butsch (1869), 32 Ind. 338.
In the ease of Stockwell v. State, ex rel., supra, the court said: “It is next contended that the judgment should be reversed because the evidence does not show title in Har
“Parties have an undoubted right to try their case on illegal evidence, if they so desire; and if illegal evidence is admitted without objection, it is the right and duty of the jury to give it such consideration as it would be entitled to if legal evidence.” Birmingham R., etc., Co. v. Wildman (1898), 119 Ala. 547, 24 South. 548.
If a party desires to make an objection of any kind to the admissibility of evidence, he should do so at the proper time. If the evidence is excluded, the party offering it may be able to supply the defect by other proof. It is not uncommon for testimony to be given which is not, in its nature, strictly competent on matters about which both parties realize there is no dispute. Such evidence is taken because the adverse party makes no objection, and there is no question as to the fact it tends to prove. He cannot after verdict obtain a new trial on the ground that the fact was not proved, because the evidence received in support of it was incompetent and should have been rejected on proper objection. The same rule holds good where incompetent or illegal evidence is admitted without objection to prove a fact in dispute. The party against whom such evidence is introduced may not take his chance of obtaining a favorable verdict at the hands of a jury on the evidence so admitted, and then, after an adverse verdict, obtain a new trial on the
The evidence of the witness Jeremiah Sullivan, although incompetent, tended to prove that the assured died prior to the year 1902. We cannot say, therefore, that the decision of the court is not sustained by sufficient evidence.
The court did not err in overruling appellant’s motion for a new trial.
Judgment affirmed.
Note. — Reported in 98 N. E. 824. See, also, under (1) 13 Cyc. 299; 1913 Cyc. Ann. 1584; (2) 13 Cyc. 298; (4) 13 Cyc. 295; (5) 13 Cyc. 300, 301, 305; (6) 13 Cyc. 303, 307; (7) 13 Cyc. 305, 307; 25 Cyc. 945; (8) 16 Cyc. 1223, 1229; (9) 13 Cyc. 306; (11) 16 Cyc. 1224; (12) 13 Cyc. 306. As to the presumption of death generally and the burden of proof in rebuttal, see 104 Am. St. 198. As to the facts which must be shown in connection with absence to establish a presumption of death, see 7 Ann. Cas. 573; 14 Ann. Cas. 242.