Wyckoff v. Mutual Life Insurance

Action by Bess S. Wyckoff against the Mutual Life Insurance Company of New York to recover double indemnity under a life policy. The jury, by its verdict, found that insured had committed suicide, and from the judgment denying recovery of double liability, plaintiff appeals. REVERSED. The beneficiary brought this action to recover under the double indemnity provision of a life insurance policy issued by the defendant company, alleging that the insured came to his death from "bodily injury effected solely through external, violent, and accidental means", to-wit, by being drowned in the Snake river. *Page 594 The defendant, in its answer, admitted that the insured was drowned in the Snake river but denied that death was accidental and alleged affirmatively that "insured died by reason of self destruction". The issue was clear cut. Was insured drowned as a result of an accident or was his death suicidal? There was no eye witness to this tragedy. The case was based purely upon circumstantial evidence. The jury, by its verdict, found that the insured had committed suicide and hence no double liability was payable under the policy. The appeal is based solely upon the refusal of the court to give the following requested instructions: 1. "You are instructed that there is a legal presumption against suicide and when the body of a person is found under circumstances pointing to a sudden death from injury or drowning, such death is presumed to have been caused by accidental means rather than by the intentional act of the person himself." 2. "You are instructed that in an action on an accident policy, if it is shown by the evidence that the death must have been accidental or suicidal, the presumption against suicide can be overcome by circumstantial evidence only if it is of such quality and weight as to negative every reasonable inference of death by accident." The first requested instruction presents the question as to whether it was reversible error for the court to refuse to tell the jury that there is a legal presumption against suicide. The second request pertains to the quantum of evidence necessary to overcome a presumption against suicide. *Page 595 That there is a presumption of law against suicide is well settled in this jurisdiction and elsewhere: Fink v. PrudentialInsurance Co., 162 Or. 37, 90 P.2d 762; Cox v. Royal Tribe,42 Or. 365, 71 P. 73, 60 L.R.A. 620, 95 Am. St. Rep. 752. Also see exhaustive note in 103 A.L.R. 185 and Couch's Cyc. of Insurance Law (Vol. 8) § 2230. As said in 29 Am. Jur. 1085: "* * * where it is doubtful from the evidence whether death was caused by an accident or by suicide, a presumption arises that an accident, and not suicide, was the cause of death", citing numerous authorities in support of the text. Aside from such common law presumption, it is believed that the disputable statutory presumption (Subd. 1, § 2-407 O.C.L.A.) "That a person is innocent of crime or wrong" is broad and comprehensive enough to include a presumption against suicide. Based upon an identical statute, the Supreme Court of California, in Wilkinson v. Standard Accident Ins. Co., 180 Cal. 252,180 P. 607, referring to the presumption against suicide, said: "This presumption necessarily and logically follows from the statutory presumption `That a person is innocent of crime or wrong.'" (Code Civ. Proc. § 1963, subd. 1.) It is common knowledge that sane persons do not ordinarily kill themselves. Human experience teaches that there is a strong love of life and fear of death inherent in mankind. It is upon this experienced course of human conduct that the legal presumption against suicide is based. Under the early common law, suicide was punished as a felony. Blackstone describes how the suicide was given an ignominious burial along the highway with a stake driven through his body. We *Page 596 do not now regard suicide with such severity but, nevertheless, self destruction ordinarily involves moral turpitude and is undoubtedly regarded as being wrong. True, such presumption is not specifically enumerated in the statute as a disputable presumption. Neither is fraud but will it be contended that there is no presumption of law against it? The various disputable statutory presumptions — some of which are much stronger than others — are based upon human experience and have, by legislative enactment, crystallized into rules of law. Whether a presumption of law has evidentiary value is a question upon which text writers, legal commentators, and professors of the law — to say nothing about judges — have evinced much learning and erudition. The "Battle of Presumptions" commenced when that eminent legal scholar, Professor Thayer, of Yale University, in his "Preliminary Treatise on the Law of Evidence" strongly criticized the United States Supreme Court inCoffin v. United States, 156 U.S. 432, 15 S.Ct. 394,39 L.Ed. 481, for reversing a judgment of conviction because the trial court refused to instruct the jury that a presumption of innocence exists as evidence in favor of a person accused of crime. The court quoted from 1 Greenleaf on Evidence, § 34, that, "This legal presumption of innocence is to be regarded by the jury, in every case, as a matter of evidence to the benefit of which the party is entitled." Then came another eminent scholar, Professor Wigmore, — to whom the torch had been thrown — and he became the leading exponent of the theory that a presumption of law has no evidentiary value and that, after it has carried the case past the court to the jury, the presumption disappears from the case and can not be weighed in the scales with the evidence. According to this *Page 597 theory, a presumption of law has only procedural consequences and when it has operated as such it is functus officio. In other words, when evidence is introduced to rebut the presumption — however weak the evidence may be — the presumption is overcome and destroyed. Some text writers, law professors, and judges who have espoused the Wigmore doctrine have vied with one another in an effort to show how flimsy and unsubstantial a presumption of law really is. This "phantom of the law" has been likened to "bats flitting about in the twilight and then disappearing in the sunshine of actual facts," and to a house of cards that topples over when rebutted by evidence. It remained for Professor Bohlen to head the class when he said a presumption of law was like Maeterlinck's male bee which, after functioning, disappeared. However, the statute (§ 2-401 O.C.L.A.) in plain and explicit language declares that a presumption is indirect evidence and, under § 2-403 O.C.L.A. defines it as a deduction which the law expressly directs to be made from particular facts. Section 2-405 O.C.L.A. provides that a presumption may be "overcome" by otherevidence, and § 2-1001 O.C.L.A. provides that the jury "are the judges of the effect or value of evidence * * *" but "that they are not bound to find in conformity with the declarations of any number of witnesses which do not produce conviction in theirminds, against a less number, or against a presumption or other evidence satisfying their minds." (Italics ours.) It is difficult to understand how a jury could determine whether a presumption has been overcome by other evidence, if it was not instructed as to the existence of the presumption. Obviously, the Wigmore doctrine can not be reconciled with the statute. *Page 598 While a presumption in the strict sense of the word is not evidence, it is clear from these statutory provisions, when considered in their entirety, that a presumption has probative or evidentiary value. Under our statute, a presumption stands in lieu of evidence and does not necessarily "disappear" when, as Wigmore says, evidence is offered in opposition thereto. It only "disappears" when the facts upon which it is based have been "overcome" by evidence to the contrary. As said by Mr. Justice Fields in Lincoln v. French, 105 U.S. 614, 26 L.Ed. 1189: "Presumptions are indulged to supply the place of facts; they are never allowed against ascertained and established facts." It is conceded that evidence may be of such conclusive character that only one reasonable deduction can be drawn therefrom, in which event the presumption would disappear and a verdict be directed, but that is not this case: Kernin v. City ofCoquille, 143 Or. 127, 21 P.2d 1078; Hancock Land Company v.Portland, 82 Or. 85, 159 P. 969, 161 P. 250. When the case, as here, involves a question of fact, who is to say — the judge or the jury — that a presumption has been overcome? Assume that the evidence offered to rebut the presumption is highly improbable and that the jury thinks the witness is unworthy of belief. Is the presumption of law thus destroyed? Has it been "overcome" by evidence which produces conviction in the minds of the jury? When the legislature in 1862 (§ 2-401 O.C.L.A.) declared that indirect evidence is of two kinds: "Inferences; and (2) Presumption", it was merely expressing the opinion which universally prevailed among lawyers and judges at that time. Indeed, no one asserted *Page 599 to the contrary until more than thirty years later Professor Thayer commenced to promulgate his doctrine. It is interesting and rather significant as a historical background of the statute that Mathew P. Deady, who compiled and annotated the General Laws of Oregon 1845-1864, noted in such code that "The rules and principles of the law of evidence as embodied and codified in this and the following two chapters are mainly condensed and extracted from Greenleaf's Treatise on the Law of Evidence * * *" Honorable LAWRENCE T. HARRIS, who once graced this bench, says in his article entitled, "History of the Oregon Code", 1 Oregon Law Review 184, that "It is therefore accurate to say that all that portion of the code which was enacted in 1864, except minor amendments, was prepared by Mathew P. Deady; and it is also accurate to say, on the evidence already mentioned, that most of the work of preparing the legislation of 1862 was performed by Mathew P. Deady." That the services Deady rendered to this state were satisfactory is evidenced by the fact that, although 80 years have elapsed, no amendments to his code of evidence pertaining to the legal effect of presumptions have ever been made. True, most courts have, in the main, adopted the Thayer-Wigmore doctrine that a presumption of law has no probative or evidentiary value. There is, however, very respectable authority refusing to follow the majority rule, even when no relevant statute is involved: Providence Life and Accident Insurance Co.v. Prieto, 169 Tenn. 124, 83 S.W.2d 215; Mutual Life Ins.Co. v. Maddox, 221 Ala. 292, 128 So. 383; New York Life Ins.Co. v. Beason, 229 Ala. 140, 155 So. 530; Mitchell v.Industrial Commission of Ohio, 135 Ohio St. 110 *Page 600 19 N.E.2d 769; Brown v. Metropolitan Life Ins. Co. (Iowa), 7 N.W.2d 21; O'Brien v. New England Mutual Life Ins.Co., 109 Kan. 138, 197 P. 1100; Aetna Life Ins. Co. v. Taylor,128 Ark. 155, 193 S.W. 540, Ann. Cas. 1918B 1122; Eckendorff v.Mutual Life Ins. Co., 154 La. 183, 97 So. 394; Arkimo LumberCo. v. Luckett, 201 Ark. 189, 143 S.W.2d 1102; Worth v.Worth, 48 Wyo. 441, 49 P.2d 649, 103 A.L.R. 107. In the Iowa case above cited (decided in 1942), the court said: "Appellant contends the presumption against suicide does not have the effect of evidence and asks that we over-rule our long line of decisions to the contrary. In Reddick v. Grand Union Tea Co., 230 Iowa 108, 119, 296 N.W. 805, we recently considered our previous holdings and declined to overrule them. In Allison v. Bankers Life Co., 230 Iowa 995, 999, 299 N.W. 891, we again passed upon the proposition and again held the presumption against suicide has the effect of evidence. These holdings reaffirm a rule which has been followed for more than half a century. We are not prepared to recede from it." Regardless of the conflict of authorities in other jurisdictions, it has been consistently held by this court in decisions extending over a period of fifty years that, under our statute, presumptions of law had evidentiary value: Peabody v.O.R. N. Co., 21 Or. 121, 26 P. 1053, 12 A.L.R. 823, decided in 1891; National Bank v. Assurance Co., 33 Or. 43, 52 P. 1050;Cox v. Royal Tribe, 42 Or. 365, 71 P. 73, 60 L.R.A. 620, 95 Am. St. Rep. 752; Caraduc v. Schanen-Blair, 66 Or. 310, 133 P. 636;Ward v. Queen City Fire Ins. Co., 69 Or. 347, 138 P. 1067;Doherty v. Hazelwood Co., 90 Or. 475, 175 P. 849, 177 P. 432;Hansen v. O.W.R. N. Co., 97 Or. 190, 188 P. 963, 191 P. 655;Sather v. Giaconi, 110 Or. 433, *Page 601 220 P. 740; City Motor Trucking Co. v. Franklin Fire InsuranceCo., 116 Or. 102, 239 P. 812; Clark v. Shea, 130 Or. 195,279 P. 539; Bunnell v. Parelius, 166 Or. 174, 111 P.2d 88. This is not the first time that this court has been urged to adopt the Wigmore doctrine. In Ward v. Queen City Fire Ins.Co., supra, decided thirty years ago, this court refused to do so, saying: "* * * whatever may be the rule in some states, or the principle sanctioned by the text-writers, our code regards a presumption as a species of evidence by placing presumptions in the class of indirect evidence: Section 93 L.O.L. No sufficient reason is presented to warrant this court in overruling its former pronouncement on the subject under consideration, and for that reason adherence is given to the rule embodying the instructions of the lower court." (Italics ours.) In Hansen v. O.W.R. N. Co., supra, decided in 1920, this court again rejected the doctrine and, speaking through Justice HARRIS, said: "Some text-writers take the view that it is fallacious to attribute to disputable presumptions any artificial probative force after the opponent comes forward with some evidence to contradict the presumption, and that therefore, when the opposite party contradicts a presumption with some evidence, the presumption immediately disappears as a rule of law, and the case goes to the jury free from any artificial rule of law: 4 Wig. on Ev. § 2491; 17 Am. Law Review, 894. Other text-writers and courts maintain that a disputable legal presumption is in the nature of evidence and is to be weighed as such: State v. Kelly, 22 N.D. 5 (132 N.W. 223, Ann. Cas. 1913E, 974); 10 R.C.L. 870, 896; 22 C.J. 82. "In this jurisdiction the Code makes presumptions a species of evidence; for Section 793, L.O.L., *Page 602 declares that indirect evidence is of two kinds: Inferences and presumptions. A presumption, according to Section 995, L.O.L., is a deduction which the law expressly directs to be made from particular facts; Doherty v. Hazelwood Co., 90 Or. 475, 481 (175 P. 849, 177 P. 432). See, also, Section 868, subd. 2, L.O.L. Instead, then, of laying the presumption out of the case the moment evidence contradicting the presumption is received, the presumption remains in the case to be considered by the jury as evidence. As already pointed out, Section 797 does not define the meaning of the term `overcome'; but other provisions of the Code make the meaning plain." (Italics ours.) But the legal conflict was not ended. The doctrine of Wigmore was again espoused in an able, specially concurring opinion by Justice ROSSMAN in Bunnell v. Paralius, supra. The court, however, refused to depart from its long line of decisions holding that presumptions, by virtue of the statute, have evidentiary value. In California and Montana which have statutory provisions relative to presumptions identical with those of this state, the courts have consistently held that presumptions of law have evidentiary value: Nichols v. New York Life Ins. Co., 88 Mont. 132, 292 P. 253; Renland v. First National Bank, 90 Mont. 424,4 P.2d 488; McMahon v. Cooney, 95 Mont. 138, 25 P.2d 131;Gagnon v. Jones, 103 Mont. 365, 62 P.2d 683; Lewis v. NewYork Life. Ins. Co., 113 Mont. 151, 124 P.2d 579; Wilkinsonv. Standard Accident Ins. Co., (Cal.), supra; People v.Milner, 122 Cal. 171, 179, 54 P. 833; Smellie v. S.P. Co.,212 Cal. 540, 299 P. 529; In re Pitcairn's Estate, 6 Cal.2d 730,59 P.2d 90; Speck v. Sarver, 20 Cal.2d 585,128 P.2d 16. In *Page 603 the Milner case, the court thus clearly stated the rule which has long prevailed in this state: "Against a proved fact, or a fact admitted, a disputable presumption has no weight; but, where it is undertaken to prove the fact against the presumption, it still remains with the jury to say whether or not the fact has been proven, and, if they are not satisfied with the proof offered in its support, they are at liberty to accept the evidence of the presumption." If it be assumed that there is a legal presumption against suicide and that it has probative value, the next logical inquiry is: What shall the court tell the jury about it? Have the substantive rights of the party who relies upon such presumption been violated by refusal of the court to inform the jury of its existence? Of course, if a presumption of law has no probative value and would not aid the jury in arriving at a verdict in accordance with the law and the evidence, there would be no sense in telling the jury about it. If, however, such presumption does, under our statute, have evidentiary value, the failure to instruct the jury as to its existence would clearly be reversible error. The instruction in question does not ask that the jury be told that a presumption of law is evidence. It merely requests that the jury be advised that there is a legal presumption against suicide, in order that the same may be taken into consideration in arriving at a verdict. There is a great diversity of opinion among courts in other jurisdictions as to the form and purport of the instructions concerning presumptions. There is the extreme view that the word, "presumption" should never be mentioned in instructions. Other courts take *Page 604 the more conservative view that it is improper to tell the jury there is a presumption against suicide but that the trial court should direct the attention of the jury to the facts upon which such presumption is based. This method of approach is impracticable in state courts which are not permitted to comment upon the weight of the evidence nor to point out particular evidence from which inferences may or may not be drawn. It is conceded that, under the federal practice it might be more feasible. Relative to this phase of the case, see the article "What Shall The Trial Judge Tell The Jury About Presumptions?", 13 Wn. L. Rev. 185, by Professor Charles T. McCormick, Professor of Law at Northwestern University School of Law. It reflects common sense and shows a clear understanding of the instruction problem. He says, "the practice of keeping silent about the relevant presumptions in a case where the issues are disputed and must be submitted to the jury runs counter to the traditions of the trial courts in most states." As to the form and purport of the instructions on presumptions, he concludes that "an instruction that the presumption stands until the jury are persuaded to the contrary, has the advantage that it seems to make sense, and so far as we may judge by the other forms thus far invented of instructions on presumptions by that name, I think we can say that it is almost the only one that does." As to the federal practice, referring particularly to the leading case ofJefferson Standard Life Ins. Co. v. Clemmer, 79 F.2d 724, 103 A.L.R. 171, Professor McCormick calls attention to the fact that, in the federal court, the judge is free to follow the common law tradition of explaining the allowable inferences from the particular circumstantial evidence. *Page 605 Assume that A dies with the promissory note of B in his possession. The executor of A's estate brings an action on the note. The note is admitted in evidence. It is presumed to have been executed for a consideration (Subd. 21 § 2-407 O.C.L.A.). Aprima facie case has thus been made, but B testified that the note was given without consideration. A's lips are sealed in death. It is clear what would happen to plaintiff's case if the court refused to instruct the jury as to the disputable statutory presumption above mentioned. There are numerous other cases where, to prevent a miscarriage of justice, it is absolutely necessary for the jury to be apprised of the existence of a legal presumption. New York Life Ins. Co. v. Gamer, 303 U.S. 161, 58 S.Ct. 500,82 L.Ed. 726, 114 A.L.R. 1218, involved an insurance policy providing for double indemnity in case of death other than by self destruction, effected solely through external, violent, and accidental means. Action was commenced in the state court of Montana but, on account of diversity of citizenship, was removed to the federal court for the district of Montana. When the cause reached the United States Supreme Court it was held reversible error to instruct the jury that there was a presumption of law that death was not voluntary and that defendant must overcome such presumption by a preponderance of the evidence. The decision of the United States Supreme Court adopting the Wigmore theory may be persuasive but it is certainly not controlling. The Montana Supreme Court in Lewis v. New York Life Ins. Co., supra, decided in 1942, definitely refused to follow the rule announced in the Gamer case, as it was incompatible with the statutory provisions *Page 606 of that state relative to the legal effect of disputable presumptions. The court said: "Defendant urges us to adopt the view announced in the Gamer case to the effect `The presumption is not evidence and may not be given weight as evidence.' This court has repeatedly and without exception held otherwise under sections 10600 and 10604, Revised Codes. It perhaps is not correct to speak of a presumption as evidence in spite of the provisions of section 10600 which class presumptions as indirect evidence, in view of section 10602 which directly defines a presumption as a deduction which the law expressly directs to be made from particular facts. Yet that does not require any change in the rule long adhered to by this court that the presumption stands in the face of positive evidence to the contrary except in certain circumstances such as are found in Re Wray's Estate, supra, and Nichols v. New York Life Ins. Co., supra, and must be given weight in determining the fact question. Section 10604 provides that the presumption may be controverted by other evidence. If the presumption disappeared once evidence to the contrary appeared, there would be nothing for that evidence to controvert. Section 10604 clearly means that when positive evidence appears it stands on one side and the presumption on the other, and the trier of fact must weigh them both in determining the question. This court has adhered to this view throughout its history. The rule that the presumption stands even though controverted is not necessarily based on a theory that it is evidence itself, but upon the statutes. The legislature may define the effect of the presumption as it has and even though, strictly speaking, it is not itself evidence, there is no reason why the legislature cannot require that a proven fact out of which the presumption arises be given certain probative value which has the effect of evidence. * * *", citing numerous authorities in support thereof. *Page 607 Cox v. Royal Tribe, supra, is squarely in point. Referring to the instructions given relative to the presumption against suicide, the court said: "But the more serious objection seems to be that the court should not have instructed at all as to the presumption of death from natural causes, affirming that there was sufficient testimony otherwise bearing on the issue from which the jury should have made up their verdict; and citing Sackberger v. National Grand Lodge, 73 Mo. App. 38. In the case at bar the evidence is not such as to explain or to indicate with such probability how the body of the deceased came to be in the water as found as to render the presumption unavailable in determining the cause of death. She was found in the water, but no one saw her go in, and how she came to be there — whether of her own accord or by another cause — no one can positively say from the testimony; hence the presumption becomes a pertinent factor in determining the cause, and, we think, was properly submitted to the jury in aid of their deliberations." (Italics ours.) The above case involved an ordinary life insurance policy and the burden of proof was, by reason thereof, on the defendant company to establish suicide. In the instant case, however — the action being to recover upon a double indemnity clause of the policy — the burden of proof was on the plaintiff beneficiary and the trial court so instructed. The difference in the two cases relative to the burden of proof, however, does not affect the Cox case as an authority on the question under consideration. No instruction was requested that a presumption against suicide was evidence. The plaintiff, however, was entitled as a matter of substantive right to have the court instruct the jury as to the existence of such *Page 608 presumption. The refusal of this request was reversible error. See Worth v. Worth, supra, and cases cited therein. No error was committed in refusing to give the second requested instruction relative to the quantum of evidence necessary to overcome the presumption in question, as such might tend towards confusion in cases like this where the burden of proof rests upon the plaintiff beneficiary. In my opinion, it would be proper for the court to instruct the jury in plain, simple language, in keeping with the statute, that this disputable presumption could be overcome by evidence satisfying their minds to the contrary; that, if the disputable presumption was not thus overcome, the jury should find in accordance therewith, viz., that the insured drowned as the result of an accident. The constitutionality of statutory provisions relative to disputable presumptions having the effect of evidence is well settled. In 20 Am. Jur. 40, Evidence § 9, it is said: "Statutes declaring certain facts to be prima facie or presumptive evidence of other facts do not, where there is some rational connection between the facts proved and the ultimate facts presumed, deny equal protection of the laws or violate constitutional guaranties of due process of law", citing numerous authorities in support of the text. (Italics ours.) In 12 Am. Jur. 316, Constitutional Law, § 624, it is stated: "A certain fact or facts may be made prima facie evidence of other facts if there is a rational connection between what is proof and what is to be inferred and if the rule is not arbitrary." *Page 609 See Smellie v. S.P. Co. (Cal.) supra, sustaining the constitutionality of the statute of that state — the same as ours — relative to the legal effect of presumptions. The case ofWestern Atlantic Railroad v. Henderson, 279 U.S. 639,73 L.Ed. 884, 49 S.Ct. 445, is considered and distinguished. AlsoLewis v. New York Life Ins. Co. (Mont.), supra. The judgment is reversed and the cause remanded for a new trial. BAILEY, Chief Justice, and KELLY and LUSK, Justices, concur.