Lead Opinion

LEWIS, J.

September 15, 1882, appellant issued its benefit certificate to one Fred Behlmer, husband of respondent, whereby it was provided .that $2,000 should be paid to respondent, as beneficiary, at his death. Behlmer paid the assessments until July 17, 1901, when he left his home, and was never thereafter heard from. Respondent paid the assessments until July 28, 1902, after which no assessments were paid. On July 20, 1908, respondent’s attorney requested appellant to furnish blank forms upon which to make proof of the husband’s death, and the request was refused on the ground that appellant was not liable on the certificate. Respondent executed an affidavit setting forth the fact of her husband’s disappearance and the absence of tidings from him, and on August 17, 1908, demanded payment of the amount of the certificate, which was refused. This action was commenced on October 12, 1908.

1. Was the jury justified in finding from the evidence that Fred Behlmer was dead, and that death occurred prior to July 29, 1902 ?

*310According to the record, Behlmer moved to Orookston, Minnesota, in 1879, and was married to respondent at that place in 1882. He was bookkeeper until about 1884-, when he became a partner in the shoe business, later sold out his interest, and for a number of years clerked in different shoe stores until about 1898, when he bought a farm near Orookston, where he lived until the fall of 1900, when he returned to Orookston and went into the dairy business, which he continued until his disappearance. There were six children, all living in 1901, and the record shows that he always provided for his family; that they lived harmoniously; that he was a man of good habits, spending most of his leisure at home; that his associates were good; that he was generally a respected citizen; that physically he was not strong; and that several months prior to his disappearance had been in rather poorer health than usual, neither eating nor sleeping well, and became very quiet, saying little or nothing to any of the family.

After breakfast on July 17, 1801, he left the milk wagon, ready for delivery, in the. yard, and went into the house and upstairs, where he remained about half an hour, came down, and passed through the room where his wife was working, but went out without saying anything, and a few minutes later she looked out and saw him walking down the railroad tracks towards the city. He left without a word of explanation or farewell to any one, dressed in his working clothes, carrying nothing with him, and, so far as respondent knew, had no money. The police of Orookston looked for him in the city and vicinity without success, and respondent notified' the relatives, on both sides, of his disappearance, and the Orookston papers published an account of it; but from that time, according to the evidence, he has never been either seen or' heard from.

From this state of facts, the jury found that he died some time before July 29, 1902. ■ The conclusion of the jury was warranted by the evidence. The fact that Behlmer disappeared during the day and was not seen by anybody after that time in a community where he was well known, that, so far as any one knew, he had no money for traveling expenses, and the probability that he would have communicated with his family had he succeeded in getting to some other part *311■ of the country and was alive, were all circumstances which pointed to his death at or about the time of his disappearance.

• • 2. On the question of presumption of death,' thé court instructed 'the jury as follows: “If you find from the-evidence that on the seventeenth day of July, 1901, Behlmer — that is, Fred— left his home, "wife, and children and that he has never returned and that no tidings from him have ever been received by his family, a presumption arises ¡after seven'years that he is dead.” This language is assigned as error upon the ground that it omitted several elements necessary to establish The presumption of death, viz., that he led a good life, was prosperous, happy, and contented, and that there was no good reason why he •should not have returned seasonably, if he were alive. This part of the charge did not embrace all of the evidence bearing on the subject; but the court further instructed the jury that in determining whether Behlmer was dead, and, if so when death occurred, they should take ■into consideration the facts and circumstances surrounding his alleged disappearance, any possible motive for leaving his home' ánd not returning to his family and occupation, his attachment, if it existed, to his family, his business prospects, state of his health, his mental condition, and such other facts and circumstances as were disclosed by the evidence. There was some evidence tending to show that Behlmer .was in debt at the time of his-departure; but it also appeared that he was not so financially embarrassed but that "he could have ■raised the money among his friends and relatives to meet aiiy pressing necessities. Some evidence was also introduced tending to show that he was short in his accounts as treasurer of a school .district; but there Was nothing definite, and under all of the circumstances it was for the jury to say whether his disappearance was to be accounted for on some other ground than the fact of death.'

■. When the charge is considered as a whole, we do not think it open to the criticism that the court omitted to place before the jury any of the material facts necessary to a basis for the presumption. The case comes fairly within the law announced in Spahr v. Mutual Life Ins. Co. of New York, 98 Minn. 471, 108 N. W. 4.

3. A more important question is whether the action was barred by the statute of limitation at the time it was commenced in October, *3121908. The certificate provided that proofs of death of any member should be furnished by the beneficiary and be filed with the grand recorder before the lodge would be in any way liable, and that “no action or proceeding to recover upon any beneficiary certificate issued by or upon which this grand lodge is claimed to be liable shall be commenced or maintained by any person or persons until proofs of death have been furnished and passed upon by the committee on finance or by the board of directors, as hereinbefore provided.” On January 1, 1903, the constitution was amended, providing that no action to recover upon any benefit certificate should be commenced or maintained unless commenced within two years from the date of .the death of the member named in the certificate. It will not be necessary to consider the effect of this amendment for the reason that it did not affect the certificate now under consideration.

No cause of action accrues until proofs of death are presented, and the crucial question is: Were the proofs tendered in this case within a reasonable time after Mr. Behlmer’s death? We must assume that the finding of the jury is final as to the time of Behlmer’s death prior to July 29, 1902. At that time respondent was at liberty to assume that her husband was dead and to stop payments on the certificate for that reason, or she was at liberty to continue the payments until, such time as she considered proofs of death were available. So far as we are-able to discover from the record, nothing transpired after July 28, 1902, throwing any light upon the question of his death except the presumption which arose to that effect at the expiration of seven years from the time of his disappearance.

The question before the court then turns upon whether respondent was compelled to act upon the evidence of death available at the time she stopped payments, or whether it was permissible for her to avail herself of all the circumstances surrounding the case not only prior to July 29, 1902, but in addition thereto evidence growing out of the presumption arising from seven years’ absencé of the insured. If she was limited by the terms of the contract to the evidence before her at the time she stopped payments, then, in our opinion, she failed to present the proofs within a reasonable time; but if, under any permissible construction of the contract, she had the privilege of wait*313ing until the presumption of death arose before submitting the proofs of death, then she offered to present proofs, and commenced this action within a reasonable time after such presumption accrued, and the action is not barred.

Much may be said on both sides of the question; but a majority of the court are of opinion that respondent was not restricted to the evidence available to her at the time she stopped making payments on the certificate, July 28, 1902, for the reason that, while such evidence seems to have satisfied her that her husband was- dead, yet there was then no known evidence by which his death could have been legally established. An attempted proof of his death before the expiration of the seven years would have been necessarily insufficient, a nullity. A party is not bound to do a useless thing. The certificate did not require the proofs to be filed within any particular time, and hence a reasonable time, in view of all the circumstances of the case, was a compliance with the contract. In an ordinary case of death, where the proofs to establish it are available, there is no reason for the application of the rule of evidence growing out of the presumption of death after seven years’ disappearance, and in such case the beneficiary would be bound to furnish the proofs within a reasonable time, which might be a few days, weeks, or months, according to the circumstances; but in a ease where there is no positive evidence, and death can only be established with the aid of the presumption after the period of seven years has elapsed, why should the beneficiary be required to malee out a case from proofs which are necessarily incomplete ?

Appellant insists: That in the absence of any provision in the contract limiting the time within which the proofs must be filed, reasonable time is to be measured by the statute of limitations, viz., six years, which in this case expired July 29, 1908; that in no case has the beneficiary more than six years from the date of death to file the proofs thereof; and that the action must be brought within a reasonable time thereafter. According to this construction, all certificates become void if proofs are not furnished within six years from the date of death. Is that the meaning of this contract ? Such associations are organized for the express purpose of providing a beneficiary *314fund for those members who contribute for the benefit of the beneficiaries in other certificates, and unless it clearly appears from the language of the contract that.it was intended to cut off, without relief, those cases where evidence of death cannot be secured within six years, such construction should not be adopted. It is manifestly just that beneficiaries who have paid the assessments up .to the time of the death of the. insured should receive the reward for carrying the burden. When, from the circumstances, the presumption arising from seven years’ absence is necessary to complete sufficient proof of death, reasonable time to present such evidence after it accrues is necessary in order to make the certificate of any value to the beneficiary.

We believe the proper construction of this class of contracts to be that a cause of action does not arise until proofs of death are furnished; that the time for furnishing the same is'not limited to six years from the time of death, but shall be made within a reasonable time after death/ according to the circumstances of each particular case; and it is our opinion that the fair and reasonable meaning of the contract is that the parties intended that the beneficiary should have the benefit, of the evidence of death arising from the disappearance of the insured for the period of seven years; other evidence of death being in itself insufficient; that respondent did not waive this right by assuming that the insured was dead, and in stopping payments; but that she tendered the proofs and commenced the action within a reasonable time after the evidence accrued.

4. Error is assigned to the instruction of the court to the jury in that they were not correctly advised as to the proposition of law governing the case. Although the charge is open to' 'some criticism .for' indefiniteness, it is evident that the mairi proposition litigated was. clearly set before the jury, viz., that they should determine from the evidence whether the proofs were filed within a reasonable time, after the date.of the insured’s death.'. What was said with reference to the time the cause of action accrued could not have either misled or.prejudiced the jury.

Affirmed.

Dissenting Opinion

O’BRIEN, J.

(dissenting).

I am unable to concur. . Fred Behlmer, the certificate holder, disappeared July 11, 1901, in the manner described in the opinion of the majority. The plaintiff, his wife, the beneficiary named in the certificate, paid the assessments due upon the certificate until July 28, 1902, at which time she stopped making any payments, and with reference to this testified upon the trial: “Isimply stopped paying, that is all. In my mind I knew that he was dead, arid there was no use paying on forever, I said.”

The jury found that Behlmer died prior to July. 29, 1902. We have, then, this case: The certificate holder in fact died prior to July 29, 1902; the beneficiary elected to assume that he had died prior to that date and paid no further assessments. Proof of death was made in August, 1908, and .this action commenced October 12, 1908.

- The by-laws of the association required proof of death as a prerequisite to the bringing of an action, but fixed no specific time therefor which made it obligatory upon the beneficiary to furnish such proof within a reasonable time after the death of the insured. • If proof of death was not furnished within a reasonable time, the beneficiary lost her right of action; if it was so furnished, the cause of action thereupon accrued, and suit might be commenced at any time within six years thereafter.

In my opinion, if this was a case for the jury at all, these two questions should .have been segregated and presented to the jury as independent claims for their determination. Instead of doing so, the court instructed the jury: “If you find that a reasonable time for the presentation of proofs of loss extended to a point so late that the six years had not expired when the action was begun, then you will not hold the claim or the suit barred by the statute of limitations.” Under this instruction the jury might have found three months after July 29, 1902, a reasonable time to make proof of death, and the action brought October 12, 1908, not barred by the statute, while in fact the proof of death was not made until August, 1908, or more than five years after the reasonable period of three months had expired. This instruction was prejudicial error which at least entitles *316the defendant to a new trial; but, in addition, I think the defendant was entitled to a directed verdict in its favor.

Continued and unexplained absence for seven years is sufficient to create the presumption of death, but carries with it no presumption as to the time of death. Davie v. Briggs, 97 U. S. 628, 24 L. Ed. 1086. Death, however, may be proved by circumstantial evidence even where the statutory period creating the presumption has not elapsed. 13 Cyc. 299. The plaintiff deliberately elected in July, 1902, to act upon the assumption that her husband was dead. She might have elected to maintain the certificate in force, until the presumption of death arose under the statute. The defendant had no voice in the matter. Having concluded to act upon the theory of his death, it then became the plaintiff’s duty to furnish, within a reasonable time, proof of death. She failed to do so for more than six years, the statutory limitation for an action upon the policy. In my judgment a reasonable time for the performance of this act could be no longer, as a matter of law, than the statutory period for bringing suit after the cause of action had accrued. State v. Probate Court of Ramsey County, 40 Minn. 296, 41 N. W. 1033; O’Mulcahey v. Gragg, 45 Minn. 112, 47 N. W. 543; Davis v. Townsend, 45 Minn. 523, 525, 48 N. W. 405; State v. Norton, 59 Minn. 424, 61 N. W. 458; McDonnell v. Branch Bank, 20 Ala. 313; Codman v. Rogers, 10 Pick. 112, 119; Campbell v. Whoriskey, 170 Mass. 63, 48 N. E. 1070; Williams v. Bergin, 116 Cal. 56, 47 Pac. 877; Spratley v. Mutual, 11 Bush. (Ky.) 443; 25 Cyc. 1207.

Concurrence Opinion

BROWN, J.

I concur in the dissent of Mr. Justice O’Brien.