Wackerle v. Mutual Life Ins.

Treat, D. J. A full examination has been made of the evidence, which was one peculiarly for a jury. It was on both sides full of doubts, inconsistencies, and contradictions. Turn as we may in the analysis of the evidence, strange and irreconcilable aspects are presented. The first point to be established by plaintiff was the death of her husband. That rested on the testimony of several witnesses concerning the railroad accident, and the identity of the person killed thereby. The evidence of the plaintiff and others as to the skeleton exhumed some four or more years after such killing, establishes to the satisfaction of the court that the exhumed skeleton was not that of the man killed, supposed to be William Waekerle, on December 25, 1872. The court directed the. attention of the jury especially to that fact. Not that it was conclusive, hut because it tended to show what weight should be given to other testimony. It may be that the exhumed skeleton was not that of William Waekerle, and hence tlie accuracy of plaintiff’s testimony became questionable. Tet there was other evidence as to the death of the party killed, independent of the exhumation in 1877. It was therefore for the jury to decide whether, despite the mistakes as to the identity of the skeleton, William Waekerle was killed as alleged. The case as presented by the evidence was remarkable in many other aspects, concerning which it is useless to comment. There are several depositions wanting which the court has been anxious to read and analyze, hut by some accident they have disappeared. Hence the court has to rely on its memory as to their contents, and if [28] a new trial is granted the plaintiff after a long lapse of time [cannot be required] to supply the same. So far as the court was justified in alluding to or commenting on the evidence, it pointed in its charge sharply against the plaintiff’s claim, so far as identity depended on the exhumed skeleton. Still, the jury reached the conclusion that the plaintiff’s husband was killed in 1872, as alleged, and consequently that the person produced by the defendant, and claiming to be the William Wackerle, (husband of the plaintiff,) was not what he pretended. The case was tried at great length, and the largest scope given to a searching inquiry. Its novel aspects induced the court to admit every item of testimony which could shed light on the subject. After full deliberation on the varied, inconsistent, and contradictory evidence, the jury reached a conclusion which was their exclusive province, and the court does not feel justified in interfering therewith. The motion for a new trial is overruled.