57 Ind. App. 329 | Ind. Ct. App. | 1914
Lead Opinion
This is a suit on a benefit certificate issued by appellee to Charles W. Martin, in which, in case of death from accident within the provisions thereof, appellee agreed to pay the beneficiary thereof the sum of $5,000. Carl F. Martin was the minor son, and by reason of the death of his mother, prior to that of his father, became the sole bene
The errors assigned are: (1) sustaining appellee’s motion to strike out the additional fourth paragraph of appellant’s complaint. (2) The error of the court in rendering judgment for appellee against appellant on the answers to the interrogatories notwithstanding the general verdict.
The next error assigned and discussed by both appellant and appellee is that the court erred in sustaining appellee’s motion for judgment on the answers to the interrogatories notwithstanding the general verdict. The policy contains the following provisions:
“The member hereby agrees that the following rules shall be observed: that the Traveler’s Protective Association of America shall not be liable * * * in case of * * * injuries of which there is no visible mark upon the body (the body itself not being deemed such a mark in case of death).”
The interrogatories and the answers thereto are as fol
person. Viewed in this light, it is apparent that the answers to interrogatories Nos. 5 and 6 come short of showing that there was at no time after the dislocation and before the death any visible mark of injury on the body of the decedent. Rhodius v. Johnson (1900), 24 Ind. App. 401, 405, 56 N. E. 942; Boyer v. Indianapolis, etc., Traction Co. (1910), 45 Ind. App. 683, 686, 90 N. E. 478. If there were visible marks on the body at the time of, or shortly after, the injury, the fact that they may have been obliterated before the death of
Other questions are presented and because the foregoing conclusion necessitates a reversal of the judgment, we give them consideration. It is contended by appellant that the answer to interrogatory No. 4 showing that the cause of death of the insured was “dislocation of the neck”, enables the court to declare as a matter of law that there was on the body of decedent “a visible mark” of in jury w within the meaning of the insurance contract. If this can be done the answers to interrogatories Nos. 5 and 6 are contradicted and nullified by the answer to No. 4, and under a well established rule would not affect the general verdict. Some questions in a sense preliminary to a determination of the effect of said answers are involved and will be considered. It is apparent that in answering that there were no visible marks of injury on the body at the time of, or after death, that the jury used the phrase “visible marks” in the ordinary and limited sense of surface indications readily apparent to the eye unaided by any other means of discernment of the marks of injury. Lewis v. Brotherhood Acc. Co. (1907), 194 Mass. 1, 79 N. E. 802, 17 L. R. A. (N. S.) 714, 717; Fuller, Accident and Liability Ins. 126.
In 1 May, Insurance (4th ed.) §175, it is said: “No rule, in the interpretation of the policy, is more fully established or more imperative and controlling, than that which declares that, in all cases, it must be liberally construed in fa
The foregoing authorities establish the rule that in determining what is a visible mark of injury on the body the term visible is used in the broad sense of perceptible, discernible, clear, distinct and evident. In applying the rule, courts have recognized as sufficient knowledge obtained by a digital examination or manipulation of the body, an autopsy, and various manifestations (other than those readily observable upon the surface of the body) which afforded evidence
For reasons already stated the judgment is reversed with directions to the lower court to grant a new trial and for further proceedings not inconsistent with this opinion.
Dissenting Opinion
Dissenting Opinion.
On reexamination of the questions presented by this appeal, a majority of the court has reached the conclusion that a rehearing should be granted and that the judgment of the lower court should be reversed.
I am unable to agree with the majority opinion in this ease. The lower court held that there was an irreconcilable conflict between the general verdict and the answers of the jury to the interrogatories submitted. This is the sole question presented to this court. There are many citations of authority in the opinion of the court which state the law correctly as applied to the facts in the particular eases in their respective jurisdictions. There are many expressions in the majority opinion which in the main state the law correctly, but which have no application to the facts presented in this appeal. There is no question to be determined upon the evidence in this ease, as to what constitutes visible marks, as the jury found that there were no visible marks upon the body of the decedent at the time of, or after, his death, and no court anywhere, or at any time, in so far as our research discloses, has ever held a thing visible which was really in
I do not agree with the reasoning or conclusion of the court with respect to the other propositions discussed. It is correctly stated that all proof which might have been properly heard under the issues may be deemed to have been heard. In reasoning upon this principle it is suggested that the interrogatories find only that at the time of decedent’s death and afterward no visible marks were upon the body. "We are asked to hold that some space of time might have intervened between the time of the injury and the death of the decedent, and that the jury might have so found under the issues. Then we are asked to indulge in the inference or presumption based upon the first presumption that there might have been visible marks on the body at the time of the injury, which the jury might have found. Then we are asked to go a step farther and indulge in the additional inference or presumption that those visible marks might have disappeared before or at the time of decedent’s death, and the jury might have so found. It seems to me that the theory announced by the majority opinion is hypothetic pure and simple, and if it becomes the law of this State, it will completely destroy the office of interrogatories submitted to juries for the purpose of eliciting the facts upon which they base their verdicts, and which have heretofore served a good and useful purpose. This contention is illogical and unsound, and is condemned by the authorities in our own State as well as by the test writers and decided cases of other jurisdictions without discord. One presumption can not be indulged to sustain another. A substantive fact must be proved before an inference can be drawn, and therefore a substantive fact can not be based upon an inference.
In the case of United States Cement Co. v. Whitted
Section 1029, 2 Chamberlayne, Mod. Law of Ev. reads as follows: “The requirement that the logical inference styled a presumption of fact should be a strong, natural and immediate one brings as a corollary the rule that no inference can legitimately bo based upon a fact the existence of which itself rests upon a prior inference. In other words, there can be, in the great majority of cases, no presumption upon a presumption. On the contrary, the fact used as the basis of the inference, the terminus a quo, so to speak, must be established in a clear manner, devoid of all uncertainty.” See, also, Evansville Metal Bed Co. v. Loge (1908), 42 Ind. App. 461, 469, 85 N. E. 979; Dowell v. State (1914), 181 Ind. 68, 101 N. E. 815; 3 Rice, Evidence §342; United States v. Ross, supra; Smith v. First Nat. Bank (1868), 99 Mass.
Upon the theory that this court shall search the record in order to affirm the judgment of the lower court, there are many things disclosed by the briefs of the learned counsel in this case that might be properly discussed here that would thow much light on the action of the lower court, but no good purpose would be served by so doing. Every presumption is to be indulged in favor of the correctness of the ruling of the trial court. I am thoroughly convinced that a correct conclusion was reached, and that no error was committed by the trial court which warrants a reversal. "With the proper regard for the opinion of the majority of the court, I am respectfully insistent that this judgment should be affirmed.
Note. — Reported in 104 N. E. 880, 885. As to proofs of death under the law of life insurance, see 137 Am. St. 718. As to the waiver of a provision in an accident Insurance policy requiring notice of injury or death to be given within a certain time, see 21 Ann. Cas. 919. See, also, under (1) 31 Cyc. 669; (2) 25 Cye. 885; (3) 25 Cye. 917, 919; (4, 5) 38 Cye. 1927; (6) 25 Cye. 920, 924; (7) 25 Cyc. 954; 38 Cye. 1927; (8, 11) 16 Cye. 871; (9) 1 Cye. 252; Accident Insurance 1 C. J. §80; (10) 1 Cyc. 243; Accident Insurance 1 C. J. §38.