Valentine v. Provident Mutual Life Insurance

Plaintiff sued to recover the proceeds of an insurance policy issued on the life of her husband. The action was tried before a jury; verdict was rendered in plaintiff’s favor for the full amount of the policy, and judgment entered thereon against defendant. Defendant appeals from the judgment.

It was alleged by plaintiff that her husband disappeared in 1924, and proof of death was predicated upon the presumption prescribed by subdivision 2'6 of section 1963 of the Code of Civil Procedure, which provides: “That a person not heard from in seven years is dead.” Defendant concedes that the verdict of the jury is supported by the evidence and that such verdict cannot be disturbed by an appellate court by reason, alone, of the insufficiency of the evidence to support it. It urges that the trial court erroneously instructed the jury on the subject of burden of proof, which alleged error, taken in connection with the closeness of the evidence

Both parties admit that the burden of proof to establish death by a preponderance of evidence rested at all times upon the plaintiff. (Rogers v. Manhattan Life Ins. Co., 138 Cal. 285 , 288 [ 71 Pac. 348 ]; Valente v. Sierra Ry. Co., 151 Cal. 534 , 538-540 [ 91 Pac. 481 ]; Patterson v. San Francisco etc. Ry. Co., 147 Cal. 178 , 183, 184 [ 81 Pac. 531 ]; Code Civ. Proc., secs. 1981 and 2061 [5].) It is also conceded that a presumption is evidence (Smellie v. Southern Pacific Co., 212 Cal. 540 [ 299 Pac. 529 ]), and that when sufficient facts are established to invoke the application of a presumption, a prima facie ease has been established which shifts the burden of going forward with the evidence to the other side. It is not contended by either litigant that the burden of proof to establish the affirmative of an issue ever shifts. This is, of course, the law. (Asadoorian v. Kludjian, 210 Cal. 564 , 565 [ 292 Pac. 644 ]; Scarborough v. Urgo, 191 Cal. 341 , 346, 347 [ 216 Pac. 584 ]; Manufacturers’ Finance Corp. v. Pacific Wholesale Radio, Inc., 130 Cal. App. 239 , 244 [ 19 Pac. (2d) 1013 ].)

In the case at bar, as already stated, the error complained of consists of alleged erroneous instructions. The trial court correctly instructed the jury that plaintiff was charged with the burden of proof, i. e., that plaintiff was charged with such burden, which meant that plaintiff was required to establish her case by a preponderance of the evidence ; and the trial court correctly defined what was meant by preponderance of .evidence. In a number of instructions, however, the court when referring to the presumption of death; the fact that such presumption was evidence; and the

An analysis of all the instructions, however, discloses a mere ambiguity not amounting to error. The instructions given by the trial court when read as a whole correctly stated the law. One of the instructions given by the court and requested by defendant, said in part: "The burden of proving the death of John A. Valentine is upon the plaintiff herein. You are therefore instructed that if, after considering the evidence, you find it to be evenly balanced on the question of whether or not John A. Valentine is dead, then plaintiff has failed to sustain her burden of proof and your verdict must he in favor of defendant. ...” Another instruction was to this effect: “If you find from the evidence that the disappearance of the said John A. Valentine is explainable upon some hypothesis other than death, and his failure to communicate with his family can be accounted for on some theory other than death, then you are entitled to render your verdict in favor of the defendant.” Another instruction was in part as follows: “ . . . Unless you find a preponderance thereof to point to the presumable death of John A. Valentine, your verdict must be in favor of defendant.” (Italics ours.) It will be noted from the excerpts set out that the court in at least two instructions decisively stated the law using the word must. In another the court used the word entitled. This word is inapt, but taken in connection with the other two, its ambiguous import, as well as the ambiguity incident to the loose use of the word “overcome” is, in our opinion, cleared up.

That the use of the word “overcome” is not prejudicial error is squarely answered by authority. In the case of Anderson v. Southern Pacific Co., 129 Cal. App. 206 [ 18 Pac. (2d) 703 ] (petition for hearing denied by the Supreme Court), the court gave the following instruction, page 212: “You are

instructed that there is a legal presumption that the defendant discharged its duties to the plaintiff’s intestate, and the burden is upon the plaintiff to overcome such presumption by a preponderance of the evidence.” (Italics ours.) It will be observed that the above instruction, in addition to the use of the word “overcome” adds the phrase “by a preponderance of the evidence”. The court said at page 213, speaking with reference to such instruction, and a factual situation comparable to that of the case at bar: ‘ ‘ The instruction here given perhaps goes beyond the strict rule in that it requires the presumption to be overcome by a preponderance of the evidence, whereas in fact evidence sufficient only to balance the presumption need be introduced to overcome it.

“We do not believe the giving of this instruction as thus submitted constituted prejudicial error. We have examined such of the instructions as the record brings to us, and construing them as a whole we find the law bearing upon the evidence fairly presented to the jury.

“ ‘In determining whether a jury has been properly instructed as to the law, the instructions taken as a whole must be considered; and questionable instructions are not ground for reversal where the rights of appellant are dearly stated to the jury in other instructions. . . . ’

“It devolves upon appellant to point out that the error complained of was prejudicial to her rights under the facts in evidence; this does not appear nor does it appear that the error resulted in miscarriage of justice,”

It must be conceded that there is an undoubted looseness in the use of the word “overcome” in the charge to the jury, with reference to the effect of a presumption as evidence. The law is clear that a party against whom the presumption is invoked fully dispels the effect of the same, when he has produced evidence to so offset, balance or equalize such presumption as to leave the evidence in such a state that it cannot be fairly said that the presumption preponderates over the testimony offered to disprove it. There is no obligation to overcome a presumption by preponderating evidence. What is meant in the use of the word is that a presumption is overcome when the evidence opposed to it is sufficient to offset, equalize or balance it. (Anderson v. Southern Pacific Co., 129 Cal. App. 206 , 213 [ 18 Pac. (2d) 703 ].) We are satisfied that any ambiguity which may have existed in the language of some of the instructions was definitely cured. The

York, Acting P. J., and Doran, J., concurred.