216 Wis. 265 | Wis. | 1934
The plaintiff and Noah Delaney were married at Houston, Texas, in 1918. After living for short periods in Kansas City, Missouri, and Sioux City, Iowa, they came to Milwaukee in December, 1922. The insured was a butcher by trade and-was employed by the -Plankinton Packing Company. At. the time of his disappearance he was earning $35 a week. His. wife conducted a rooming house at their residence.. The testimony warrants the conclusion that plaintiff and her husband had always lived together in peace and tranquillity; that they had not quarreled, and that her.husband was,a man óf regular.habits. He was a steady worker, and brought-.his pay check home at the end of each week. ' He was earning more than he had ever earned before, and had had, continuous employment for- a period of nearly two years..:.. Insured spent his evenings in the company of hi.s wife. - .He :did not drink. Pláintiff and her husband were members, of a. church, which they attended together twice á week- On the occasion of his disappearance the husband left at .his ¡usual time, and, as the wife supposed, was bound for his work. -. He-' kissed his wife good-bye, left, and never returned.- ' The, wife inquired of-a fellow worker as to-whether he -was-at-work that-day,-and was. informed that'he had riot been. A.week- after this -plaintiff wrote'to-her husband’s mother, making inquiry,; and a.-little-later-wrote-to his sister. She.received no answer-;to.-these letters. '-Plaintiff did'-not appeal--to-the police-department dnd made rib- further investigation. -‘ At the suggestion.of -the insurance agent plaintiff kept,rip. the premiums- on -the - policies' throughout the -seven-yiear period tit, N ■ r"‘ • -:-
v.Xhe.- tirst> ©fntehtibn- of The defendant-is that the evidence is insuffie-ieriitito:- establish the--insured’s death at the time of theihommehcement of '-this--actiori. ' A careful'analysis of the Wisconsin cases deálihg with "the presumption of death after seven!-years(has been-made by -deferidánt,• But it is deemed
It seems to us that in view of the- fixed character of insured’s habits and daily routine, as well as the absence of any motive for disappearance or absconding, the sudden and com-
The first is the unlikelihood that insured, in the relatively short distance between his home and his place of work, could have come to his death without the fact being discovered and intelligence concerning it reaching his wife. This is urged as especially unlikely in view of his residence in a large city, with excellent police facilities. While this factor might well have been considered by a jury to weaken the inference, we consider that it merely affects the strength of the inference, and does not, as a matter of law, render speculative the conclusion that death occurred on this day.
The other contention is that the court should apply the so-called “specific peril” doctrine. In Davie v. Briggs, 97 U. S. 628, 634, it was said:
“If it appears in evidence that the absent person, within the seven years, encountered some specific peril, or within that period came within the range of some impending or immediate danger, which might reasonably be expected to destroy life, the court or jury may infer that life ceased before the expiration of the seven years.”
The requirement that exposure of the person alleged to have died at a particular time within the seven-year period to some specific peril that would account 'for his death at such time has been frequently made. However, this view was expressly repudiated in several cases. Fidelity Mut. Life Asso. v. Mettler, 185 U. S. 308, 22 Sup. Ct. 662; Tisdale v. Connecticut Mutual Life Ins. Co. 26 Iowa, 170; Sovereign Camp v. Robinson (Tex. Civ. App.), 187 S. W. 215; Lesser v. New York Life Ins. Co. 53 Cal. App. 236, 200 Pac. 22. The difficulty with the doctrine is that it seeks to impose arbitrary requirements upon a natural inference of fact. It has never been adopted in Wisconsin. See White v. Brother
By the Court. — Judgment affirmed.