171 Wis. 54 | Wis. | 1920
Lead Opinion
The following opinions were filed December 2, 1919:
There is no question needing consideration in the disposal of this case other than whether the evidence was sufficient to warrant the conclusion of the trial court that the death of one of the brothers, Bernhard, took place prior to the death of the insured.
The testimony upon which such conclusion must rest, if it can be sustained, is in substance that these two brothers,
After they left Madison the sister appears to have had a letter from Bernhard in 1906 to the effect that he had been, “shanghaied” and taken to Russia and had traveled through other foreign lands. On June 27, 1911, the deceased received a telegram directed to her proper street and number in Madison reading as follows: “Must have fifty dollars before two days will repay in fifteen days telegraph,” signed “Ben Wiber,” and appearing to , have been sent from Caliente, Nevada. (It- appeared that Bernhard at times used the name Wiber instead of Hanson.) In response to such telegram the plaintiff on behalf of his wife sent the money. On the following day another telegram, directed as before, was received as follows: “Cannot identify myself-have identification waived quick,” signed “Ben Wiber.” This was also done. No further communication whatever was received from Bernhard thereafter during the period that elapsed between such telegrams and the death of the insured, nor afterwards.
While it is conceded that the evidence in this case would be sufficient to support a finding that these brothers were dead at the time of the trial of this action in 1918, more than seven years having elapsed since the receipt of Ben’s telegrams of June, 1911, yet it is contended by appellant that the facts are not sufficient to warrant the further conclusion that the death of Ben occurred prior to the sister’s death on March 9, 1916, at a particular time.within the seven years, but only some four years and nine lhonths after such telegrams.
Unless the facts and circumstances shown in any particular case are such as warrant a reasonable inference that death took place at some particular time within the seven years, death is not presumed before the end of the period. White v. Brotherhood of Locomotive Firemen, 165 Wis. 418, 422, 162 N. W. 441; Fidelity M. L. Asso. v. Mettler, 185 U. S. 308, 319, 22 Sup. Ct. 662.
Respondent claims that the facts of this case showing a former friendly relationship between the brothers and the sister; the knowledge of her street address by Bernhard as. evidenced by his telegrams; the natural feeling of affection between them; the fact that no repayment of the loan was ever madb by Bernhard in compliance with his promise to do so within fifteen days after his telegram; that no subsequent effort was made by him to obtain additional loans, although his application was so promptly met at that time; that he was unknown at Caliente, Nevada; and that he'was never heard of again at Watertown, South Dakota, where he last had a home, — warrant a finding that his death was within" a reasonable time after the telegrams and the receipt of the $50 and therefore within the four years* and nine months intervening before the death of the insured.
' We however cannot assent to a conclusion from any one of the above suggestions made by respondent, the facts in the case, or from all of them together, that Bernhard died within a short timé after June, 1911. He and his brother were wanderers, with but the slightest of home ties, and those more naturally decreasing rather than strengthening as time went on. The failure of one so situated to keep his promise to .repay the loan so easily obtained by him in response to his' telegrams is certainly as fully as consistent with a theory of continued life, coupled with disability "or disinclination to repay, as with an inference that such obligation of" repayment had been abrogated by speedy death.
■ Under all the facts and circumstances we are reluctantly compelled "to hold that the plaintiff did not meet the burden resting upon him' to establish that the death of Bernhard occurred before the death of the insured, and it follows therefrom that the judgment must be reversed.
Dissenting Opinion
(dissenting). I.cannot concur in the decision of this case. The absence of the two brothers of Mrs. Dobelin for seven years without tidings raises a presumption of death.
The only question remaining is whether Bernhard died before Mrs. Dobelin. The facts and circumstances shown by the evidence are in my opinion sufficient to warrant the court below in drawing the inference that Bernhard died before Mrs. Dobelin. Miller v. Woodmen of the World, 140 Wis. 505, 122 N. W. 1126; Page v. Modern Woodmen of America, 162 Wis. 259, 156 N. W. 137; Whiteley v. Equitable L. Assur. Soc. 72 Wis. 170, 39 N. W. 369.
I am authorized to say that Mr. Justice Siebecker and Mr. Justice VTnje concur in this dissent.
A motion for a rehearing was denied, without costs, on March 9, 1920.