Clement v. Knights of Maccabees of the World

74 So. 287 | Miss. | 1917

Steve.NS, J.,

delivered the opinion of the Court.

The solution of one question will dispose of this appeal. There is no agreement or proof that Jeff L. Clement died at any particular time. It'is only by virtue of a legal presumption that he can be regarded as dead. He was last heard of August 13, 1906, and the seven-year period did not expire until August 13, 1913. Since the latter date the law presumes him dead, but the presumption does not prove that death occurred at any particular time prior to the expiration of seven years. There are here no circumstances or testimony tending to establish death on any particular date. The presumption of life is strong, and in this case this presumption of the continuance of life is overcome not by any actual proof of death, but solely by the statutory presumption of death. The law found it necessary to fix some period of time at which one who had been continually absent should be regarded as dead, an arbitrary time by which the rights of the living growing out of relationship to the deceased could be determined. The possession and devolution of property must be determined, statutes of limitations applied, and other rights adjudicated. There is a hopeless conflict of authority as to whether or not the presumption of death from absence raises any presumption of the precise time of death. We regard the great weight of American authority as holding that in the absence of evidence to the contrary the life of an individual of the.common age of man would be regarded as continuing until overcome by the statutory presumption of death, or, in other words, if it is essential to the case of any litigant to show that the absentee died at any particular time prior to the lapse of the seven years, the burden of proof is upon him to establish this fact by competent testimony. Just what proof in this regard would be essential need not be here indicated. In the instant case there are no special circumstances of any kind from which death at any particular time could be inferred. So it is that in the instant ease Mr. Clement was suspended in November, 1912, for nonpayment of dues and his policy thereby lapsed.

Before appellant could recover, it was incumbent upon her to show not only that the insured was dead, but that he died while the policy was in force. This burden she failed to meet. The peremptory charge was therefore properly given. While the case of New York Life Ins. Co. v. Mrs. Sue S. Brame, 73 So. 806, recently decided in this court, presented different issues, many authorities on'the point here discussed are referred to by Judge Sykes in the opinion in that case. Other authorities will be found listed in the note to Butter v. Supreme Court, I. O. F. (Wash.), 101 Pac. 481, 26 L. R. A. (N. S.) 293.

What we have said upon the question of forfeiture renders it unnecessary to discuss the other question argued— whether the by-law of appellee stipulating that absence shall raise no presumption of death is invalid because in contravention of our statute and the public policy expressed therein.

Affirmed.