Carson v. Metropolitan Life Ins.

156 Ohio St. (N.S.) 104
CourtOhio Supreme Court
DecidedJuly 11, 1951
DocketNo. 32464
StatusPublished

This text of 156 Ohio St. (N.S.) 104 (Carson v. Metropolitan Life Ins.) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carson v. Metropolitan Life Ins., 156 Ohio St. (N.S.) 104 (Ohio 1951).

Opinion

Stewabt, J.

The issue in the present case is whether the insured died as the direct result, independently of all other causes, of bodily injuries caused solely by external, violent, and accidental means and not as the result of self-destruction.

Plaintiff relies upon three assigned errors as grounds for reversal of the judgment below.

[108]*108The first assignment of error is directed to the refusal of the trial court to give the following special charge requested by plaintiff:

“Members of the jury: I charge you that if you find from the preponderance of the evidence that James Carson met his death by external and violent means, under circumstances not wholly inconsistent with accident, the law raises a presumption of accidental death, and that presumption remains until overcome by evidence to the contrary.”

We are of the opinion that the trial court did not err in refusing to give this charge to the jury.

Although it is true that in case of a death by external and violent means there is a presumption against suicide, it is misleading to charge the jury that the presumption remains until overcome by evidence to the contrary, for the reason that the jury could be led to believe that the evidence to overcome the presumption must have a greater weight than the presumption itself. The presumption is a rebuttable one and disappears upon the production of evidence to the contrary, which counterbalances it or leaves the case in equipoise. Brunny, Admx., v. Prudential Ins. Co. of America, 151 Ohio St., 86, 84 N. E. (2d), 504.

Then, too, the requested charge, referring to death by external and violent means as raising a presumption of accidental death, rather than á death by accidental means as required by the terms of the insurance policies, is open to the argument that the charge is merely abstract rather than one applicable to the issue in the present case.

The second assignment of error by plaintiff is the giving by the trial court of the following special charge requested by defendant:

“The court instructs the jury that the burden is upon the plaintiff to prove by a preponderance, or the greater weight of the evidence, that the death of the [109]*109insured occurred as the result, directly and indepently of all other causes, of accidental means, and that said death did not. occur as the result of suicide or self-destruction, while sane or insane, and should you find that plaintiff has failed to sustain that burden by a preponderance of the evidence, then your verdict must be for the defendant company. The burden never shifts, and although the defendant alleges in its amended answer that the insured’s death resulted from self-destruction there is no burden upon it to prove that fact; instead, the burden of proof remains with the plaintiff to establish by a preponderance of the evidence that death did not result from self-destruction.”

We are of the opinion that the special charge as given was not erroneous as applied to the facts in the present case.

Plaintiff contends that there was no burden upon her to prove that the insured’s death did not result from' self-destruction, and that the charge placed a burden upon her which she did not have to carry.

The answer to that claim is the fact that insured’s policies, which constitute the contracts giving plaintiff any right of action, provide that she must furnish proof of the death of the insured as the result directly, and independently of all ■ other causes, of bodily injuries caused solely by external, violent and accidental means, and that such death did not occur as the result of self-destruction.

It is true that plaintiff has the benefit of the presumption against suicide but where, as in this ease, there is evidence to counterbalance or overthrow that presumption plaintiff must show by a preponderance of the evidence, of which the presumption in her behalf is a part, that the insured did not die as a result of suicide. That burden is cast upon her because of the fact that the policies, which are the only contracts upon [110]*110which she has any right to recover, provide that she-¡must show that the insured’s death was not the result of suicide.

We come now to plaintiff’s third assignment of error, which, in argument by both plaintiff and defendant, was-presented as the important question in the present case.

Plaintiff claims that the court was in error in admitting, over her objections, exhibits 23,' 24, and 28. Exhibit 23 is the coroner’s report and exhibits 24 and 28 are certified copies of the death certificate. All contain the statement that the cause of the insured’s death was suicide. They also contain statements with reference to the insured, his color, sex, age, marital status, occupation, and residence, and that the injuries which caused his death consisted of a penetrating gunshot wound of the chest or thorax.

Defendant contends that the exhibits were admissible under Section 2855-11, as well as Sections 12102-.'26 and 1261-66, General Code.

Defendant likewise contends that plaintiff did not save her assignment of error for the reason that there was only a general objection to- the admission of the exhibits in question and that no particular objection was made to the part of the exhibits which was claimed to be inadmissible.

Section 2855-11, General Code, reads:

“The records of the coroner, made by himself or by anyone acting under his direction or supervision shall be considered public records, and such' records or transcripts thereof, or photostatic copies thereof, certified by the coroner, shall- be received as evidence in any criminal or civil court in this state, as to the facts therein contained.”

Section 12102-26 reads:

“Official reports made by officers of this state, or certified copies of the same, on -a matter within the [111]*111scope of their duty as defined by statute, shall, in so far as relevant, be admitted as evidence óf the matters stated therein.”

Section 1261-66 reads in part:

“The director of health, or person authorized by him, shall upon request * * * supply to any applicant a certified copy of the original certificate of any birth, death, or stillbirth, registered according to law. Such certified’ copy of such original certificate * # * shall be prima facie evidence in all courts and places of the facts therein stated.”

There can be no question that under the above statutes the exhibits in question were admissible as to the facts stated therein, i. e., that the insured was 28 years old, was a white male, had the gunshot wound described therein, and other demonstrable facts.

But the question before us is whether the statement in the various exhibits that the insured was a suicide constitutes a statement of fact or simply an opinion or conclusion based upon ascertained facts.

Ordinarily, where evidence is received and a part of it is admissible and a part inadmissible, a general objection to its reception is not sufficient to save the question of the inadmissibility of the objectionable part. To save the objector’s rights he should clearly indicate the part of the evidence to which he objects and move its exclusion. Kent v. State, 42 Ohio St., 426; State v.

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Related

California State Life Insurance v. Fuqua
10 P.2d 958 (Arizona Supreme Court, 1932)
Kentucky Home Mut. Life Ins. Co. v. Watts
183 S.W.2d 499 (Court of Appeals of Kentucky (pre-1976), 1944)
Brunny v. Prudential Ins. Co. of America
84 N.E.2d 504 (Ohio Supreme Court, 1949)
Timberman v. State
140 N.E. 753 (Ohio Supreme Court, 1923)

Cite This Page — Counsel Stack

Bluebook (online)
156 Ohio St. (N.S.) 104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carson-v-metropolitan-life-ins-ohio-1951.