Mutual Trust & Deposit Co. v. Travelers Protective Ass'n

Dissenting Opinion.

Shea, P. J.

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*344visible. Neither has any court ever held as a matter of law that a mark which the jury found to be invisible, was really visible, however, with so much of the opinion which holds that this court can not so declare as a matter of law, I agree.

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 *345(1910), 46 Ind. App. 105, 90 N. E. 481, this principle is clearly and aptly applied. The court said: “The charge of negligence made against appellant is that it maintained upon its premises a pool or ditch of scalding water, without sufficient guard, and into which appellee fell and was scalded. The injury complained of does not arise from wounds ■occasioned by the fall, but from burns and scalds inflicted by the hot water. So the gist of the wrong charged is the maintenance of the ditch or pool of hot water. The hot water created the danger and caused the injury. It is not averred in the complaint, nor does it appear from the evidence, that the ditch itself was dangerous, or that but for the presence of the hot water in it, appellant would be guilty of negligence in failing to maintain guards around it. Therefore, to establish appellee’s case, the evidence must show that the presence of the hot water in the ditch, which alone caused the injury complained of, was due to some negligent act of appellant, or that it knew or should have known of its presence, and have maintained proper guards around it. The only evidence on this subject disclosed by the record is the testimony of several witnesses regarding the location and size of the ditch, and of appellee and other witnesses to the fact that on the occasion when the accident happened there was about eighteen inches of hot water in the ditch, and that the source of the ditch was in appellant’s power house. From this fact, it might be possible to infer that the hot water came from the power house, but this would not justify the further inference that the ditch was customarily used by appellant as a conduit for hot water, or that the presence of the hot water in it on the occasion in question was either known by appellant, or was the result of any negligent act on its part.” In this case, as disclosed, the evidence was before the court, and if the principle that inferences and presumptions are to be carried to the extent contended for in the majority opinion in this case is adhered to, this verdict should have been upheld.

*346In the case of United States v. Ross (1875), 92 U. S. 281, 23 L. Ed. 707, this language is found: “These seem to us to be nothing more than conjectures. They are not legitimate inferences, even to establish a fact; much less are they presumptions of law. They are inferences from inferences; presumptions resting on the basis of another presumption. Such a mode of arriving at a conclusion of fact is generally, if not universally, inadmissible. No inference of fact or of law is reliable drawn from premises which arc uncertain. Whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved, and not themselves presumed. * * * A presumption which the jury is to make is not a circumstance in proof; and it is not, therefore, a legitimate foundation for a presumption. There is no open and visible connection between the fact out of which the first presumption arises and the fact sought to be established by the dependent presumption. * * * The presumption that public officers have done their duty, like the presumption of innocence, is undoubtedly a legal presumption; but it does not supply proof of a substantive fact. * * * Nowhere is the presumption held to be a substitute for proof of an independent and material fact.”

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. *347605, 97 Am. Dec. 59; Jenkins v. State (1885), 62 Wis. 49, 63, 21 N. W. 232; People v. Kennedy (1865), 32 N. Y. 141; Neal v. Chicago, etc., R. Co. (1905), 129 Iowa 5, 105 N. W. 197, 2 L. R. A. (N. S.) 905; Crafts v. Boston (1872), 109 Mass 519; Ruppert v. Brooklyn Heights R. Co. (1897), 154 N. Y. 90, 47 N. E. 971; Commonwealth v. Webster (1850), 59 Mass. 295, 52 Am. Dec. 711; Asbach v. Chicago, etc., R. Co. (1888), 74 Iowa 248, 37 N. W. 182.

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.