32 S.W.2d 880 | Tex. App. | 1930
Appellee, as surviving wife of Anacleto G. Garcia, sued appellant to recover the sum of $500 alleged to be due on a policy of insurance on the life of her said husband, as well as damages, costs, and penalties. The court instructed a verdict for appellee after hearing the evidence.
The jury passed only on the issue of what would be a reasonable attorney's fee. They found that the attorney's fee should be $100, which, together with the penalty of $60 and the principal of $500, amounted to $660.
On March 6, 1922, the insurance policy was issued, and on May 4, 1922, Anacleto G. Garcia left his home for Tampico, Mexico, to obtain employment. He was a telegraph operator and could not obtain employment because he could not speak English. He told friends that he intended to go back to Mexico to hunt for work. When he went to Mexico, he was carrying into execution a long-formed design, and there is no proof in the record that he contemplated returning to the United States. He went back to the country of his birth not far distant from the place where he formerly resided. He evidently was driven out by a revolution, for he always stated that it was his intention to return to his native land as soon as the affairs of government became settled. He left when the opportunity, long awaited, arose, and he wrote to his wife first from Tampico and then from Torreon. If he ever intended to return, we must presume that he did not so inform his wife, because she made no mention of it. No adequate effort was made by the wife to locate her husband, although it would have been easy to have communicated with friends and relatives in Mexico. She did not write to any one to obtain information about her husband, who had written to her from Torreon. He was in good health when he left Texas and there was no evidence tending to show that he was sick or infirm when he last wrote. The presumption of the continuance of life under the circumstances would destroy the legal presumption of death.
In the case of Gorham v. Settegast,
"The contention of appellants that the death of Mrs. O'Connor and her son, Beckwith, should be presumed from their continued absence for seven years from Houston, where they once resided, they not having been heard of during that period, cannot be sustained. It is true that a presumption of death is raised by the absence of a person from his domicile when unheard of for seven years. Absence, in this connection, means that a person is not at the place of his domicile, and that his actual residence is unknown. It is for this reason that his existence is doubtful, and that, after seven years of such absence, his death is presumed. But removal alone is not enough. The further fact that he has disappeared from his domicile, and from the knowledge of those with whom he would naturally communicate, so that his whereabouts have been unknown for seven years or upward, is necessary to raise the presumption. But when a person removes from his domicile in one state, to establish a home for himself in another state or country, at a place well known, this is a change of residence, and absence from the last domicile is that upon which the presumption must be built. If alive when last heard from at his last domicile, the presumption is that life continues. Francis v. Francis,
That decision is supported by the cases of Bostic v. American National Insurance Co. (Tex.Civ.App.)
The judgment is reversed, and the cause remanded.