"A coroner's verdict does not constitute evidence of any fact or finding therein stated, and is not admissible as such. Peoria Cordage Co. v. Board, 284 Ill. 90, 119 N.E. 996, L.R.A. 1918E, 822; Albaugh-Dover Co. v. Board, 278 Ill. 179, 115 N.E. 834; Novitsky v. Knickerbocker Ice Co., 276 Ill. 102, 114 N.E. 545; Wasey v. Travelers' Ins. Co., 126 Mich. 119, 85 N.W. 459; Krogh v. Brotherhood, 153 Wis. 397, 141 N.W. 276, 45 L.R.A.(N.S.) 404; In re Dolbeer's Est., 149 Cal. 227, 86 P. 695, 9 Ann.Cas. 795." See also Holloway v. Bankers Life Co., 1957, 248 Iowa 517, 81 N.W.2d 453; Federal Life Ins. Co. v. Maples, 1951, 204 Okla. 195, 228 P.2d 363; Langlitz v. American Nat. Ins. Co., Tex.Civ.App. 1940, 146 S.W.2d 484; Shiovitz v. New York Life Ins. Co., 1937, 281 Mich. 382, 275 N.W. 181; Washington Nat. Ins. Co. v. Chavez, Tex.Civ.App. 1937, 106 S.W.2d 751; Morton v. Equitable Life Ins. Co. of Iowa, 1934, 218 Iowa 846, 254 N.W. 325, 96 A.L.R. 315; Metropolitan Life Ins. Co. v. Plunkett, 1928, 129 Okla. 292, 264 P. 827. Defendant contends that it should have been allowed to make the opening and closing statements to the jury.
Cf. also Connecticut Mut. Life Ins. Co. v. Lanahan, 6 Cir., 112 F.2d 375, at page 376, wherein the court said: "It is conceded that the general rule in respect to the presumption against suicide, is applicable in Michigan, and that the presumption is not to be treated as evidence and disappears when testimony is offered to rebut it. Stuckum v. Metropolitan Life Ins. Co., 283 Mich. 297, 277 N.W. 891; Shiovitz v. New York Life Ins. Co., supra [ 281 Mich. 382, 275 N.W. 181]; Abbott v. Metropolitan Life Ins. Co., 282 Mich. 433, 439, 276 N.W. 506. Compare New York Life Ins. Co. v. Ross, 6 Cir., 30 F.2d 80; Harrison v. New York Life Ins. Co., 6 Cir., 78 F.2d 421."
A controlling question may be considered to be whether, on this appeal, review is as on a trial without jury to determine whether judgment below is against the clear preponderance of the evidence or is as from a directed verdict or judgment non obstante veredicto for defendant with plaintiff entitled to have the evidence viewed here in the light most favorable to him. Defendant cites Cardinal v. Reinecke, 280 Mich. 15, and Shiovitz v. New York Life Ins. Co., 281 Mich. 382, for the proposition that when both parties, without reservation, move for directed verdict and a verdict is directed, the case is to be considered as having been left for court decision on the facts, but if either party makes reservation of right to go to a jury, there is no waiver by either. Plaintiff, in turn, cites Kane v. Detroit Life Insurance Company, 204 Mich. 357; Burkheiser v. City of Detroit, 270 Mich. 381; and Arnold v. Krug, 279 Mich. 702, as holding that submission by a party of requests to charge negatives his intent to waive a jury trial in making a motion for directed verdict.
The appeal board, relying on Spero v. Heagany Draper Company, 256 Mich. 403; and Papinaw's ( Papinaw v. Grand Trunk Western R. Co. of Canada, 189 Mich. 441, 448 [12 NCCA 243]) rule — "an employee, not actually at work, is on duty if required to be at a certain place on call and ready for work" — , found that Mr. Krist's death occurred in the course and out of his employment. Such finding is supported by proof and legitimate inference from proof, and is buttressed by the presumption against suicide ( Shiovitz v. New York Life Ins. Co., 281 Mich. 382). Whether Krist was overcome while reading a newspaper and refreshing himself, during inferable wait for Kreibich on "a very cold day" with the garage door closed, or whether he entered the great adventure with suicidal intent, were, in my view, questions of fact for the administrative tribunal to which determinations of such nature are committed. It should be noted that Kreibich did actually go to the Wisconsin avenue address in accordance with his appointment with Mr. Krist. Kreibich was accompanied by one Hatcher, who did electrical work for the Krist company.
Suicide is an affirmative defense and the burden of proving such is on defendant. Ferris v. Court of Honor, 152 Mich. 322; Shiovitz v. New York Life Ins. Co., 281 Mich. 382, Stuckum v. Metropolitan Life Ins. Co. 283 Mich. 297. "However, when the action is brought upon an accident policy or upon the double indemnity provision of a life policy, it is incumbent upon plaintiff to show that death occurred through accidental means.
Suicide is an affirmative defense and the burden of proving such is on defendant. Ferris v. Court of Honor, 152 Mich. 322, 116 N.W. 448; Shiovitz v. New York Life Ins. Co., 281 Mich. 382, 275 N.W. 181; Stuckum v. Metropolitan Life Ins. Co., 283 Mich. 297, 277 N.W. 891. "However, when the action is brought upon an accident policy or upon the double indemnity provision of a life policy, it is incumbent upon plaintiff to show that death occurred through accidental means.
However, the opinion in that case discloses that defendant therein had not properly raised the question of burden of proof of accidental death in the lower court and for that reason, it was held that the charge of the court was not erroneous. We have re-examined the question with particular care and it becomes necessary to point out the distinction between such cases as Curth v. New York Life Ins. Co., supra, and Shiovitz v. New York Life Ins. Co., 281 Mich. 382, on the one hand, and the very recent case of New York Life Ins. Co. v. Gamer, 303 U.S. 161 ( 58 Sup. Ct. 500, 114 A.L.R. 1218), and the instant controversy, on the other. In a case where suit is brought to recover a death indemnity under an ordinary life insurance policy, without additional benefits in case of death by accident, plaintiff makes a prima facie case upon a showing of death.
"We believe that on the question of suicide, the evidence in the instant case presented a question for the determination of the jury, that this was not a case where the evidence showed that the only reasonable hypothesis was that of suicide and was inconsistent with any other reasonable explanation." In Shiovitz v. New York Life Ins. Co., 281 Mich. 382, 388, this Court said: "We find that defendant not only has not sustained the burden of proof, but has produced no testimony of sufficient evidentiary force so as to prove self destruction.
Thereafter the controverted issues must be determined from the testimony presented. Shiovitz v. New York Life Ins. Co., 281 Mich. 382. It is not always easy to determine whether testimony of various facts and circumstances only indirectly and more or less remotely connected with the real issue, even in the aggregate, will justify a court holding that there is an issue for the jury to pass upon notwithstanding the direct and positive testimony of eyewitnesses establishing a fact directly contrary to the inference sought to be drawn from the opposing circumstantial evidence. It is probably quite impossible to formulate a hard and fast uniform rule; but instead to some extent decision in each case must turn on the facts and circumstances of that case.
While it has been held that a verified proof of death furnished by the beneficiary is competent evidence as an admission of the cause of death, Kudla v. Prudential Ins. Co. of America, 272 Mich. 555, 262 N.W. 407, yet where in transmitting such proofs the plaintiff distinctly denies their correctness as to the cause of death therein stated, such proofs are not admissible to prove the cause of death. Shiovitz v. New York Life Ins. Co., 281 Mich. 382, 387, 275 N.W. 181; Powers v. Loyal Protective Ins. Co., 266 Mich. 153, 253 N.W. 250; Bishop v. Shurly, 237 Mich. 76, 211 N.W. 75. Nor are such records admissible as made in the regular course of business under Act No. 15, Public Acts 1935, since the statements therein constitute pure hearsay and have no evidentiary force. Gile v. Hudnutt, 279 Mich. 358, 272 N.W. 706.