203 Wis. 329 | Wis. | 1931
This action is brought to recover on a life insurance policy issued by the defendant upon the life of Godfrey H. Egger in which the plaintiff, his wife, is designated the beneficiary. At the time of the issuance of the policy and up to the month-of June, 1921, Godfrey H. Egger and the plaintiff lived together as husband and wife on a farm near the city of Sioux Falls, South Dakota, with seven children, the oldest then being seventeen years of age and the youngest three years of age. In the early part of June, 1921, the exact date not appearing, Godfrey H. Egger left the farm and has not been seen or heard of since, except that, a few days after leaving, his wife received a letter from him stating that he was going to Elk Point, South Dakota, on a land deal and would not be home for two or three days. A few days after, she received another letter from him stating he was never coming home and that he was going to London, England, and offering some advice with reference to the disposition of their property. There were inclosures in this letter addressed to two of the children, enjoining them to be good, giving them his blessing, and expressing the hope that some day they would meet in
The case was tried before the court. Findings of fact and conclusions of law were filed, in which it was found that Godfrey H. Egger was dead at the time of the commencement of this action and judgment rendered in favor of the plaintiff.
The appellant contends that the judgment should be reversed because the record furnishes no basis for the finding that Godfrey H. Egger was dead at the time of the commencement of this action. The respondent relies upon the case of Ewing v. Metropolitan Life Ins. Co. 191 Wis. 299, 210 N. W. 819, in which case the court applied the rule stated in 1 Greenleaf, Evidence, § 41, that “After the lapse of seven years, without intelligence concerning the person, the presumption of life ceases, and the burden of proof is devolved on the other party. . . . It is sufficient if it appears that he has been absent for seven years from the particular state of his residence without having been heard from.” That case furnishes some justification for the contention that mere absence from home without tidings for a period of seven years gives rise to a conclusive presumption of death no matter what the circumstances attending the leaving. The question, however, was again before the court in Hansen v. Central Verein, 198 Wis. 140, 223 N. W. 571. The contention upon the facts involved in that case, that the absentee should be held as a matter of law to be dead because his family had not heard from him for more than seven years, was a challenge to reason and common sense. The absentee had deserted his family and he
A presumption is variously defined as “a deduction which the law expressly directs to be made from particular facts,” and as “consequences which the law or the judge draws from a known fact to a fact unknown;” or “an inference as to the existence of a fact not actually known, arising from its usual connection with another which is known;” or “a rule of law that courts and judges shall draw a particular inference from particular facts, or from particular evidence, unless and until the truth of the inference is disproved.” 1 Jones, Commentaries on Evidence (Horwitz) § 9. So the law says that because there is an instinct implanted within the human breast which urges one who is absent from his home or family to communicate with them, his absence from home for a period of seven years without such communication raises a presumption of death. This presumption is based on this natural human instinct which normally and generally obtains. Where, however, it is shown that this instinct has been destroyed or does not exist, the foundation upon which this presumption rests is much disintegrated.
It is known to all that at times love is transformed into hate, and that men leave their families with the intention never to communicate with them again. Under such circumstances the law cannot say that because the absentee has not been heard from he must be dead, or that if he were alive he would certainly have communicated with his family. It may be that the legislature can so prescribe, and in many states we find statutes to the effect that one who has been absent from his home for seven successive years shall be
It is not very clear whether the presumption we are discussing is one of fact or law. It has been said to be a presumption of both fact and law. No doubt in a clear case it becomes in effect a presumption of law. Where the seven years’ absence is shown, and no reason appears why the absent one would not communicate with his family if he were alive, and there is no other evidence to establish either life or death, it is no doubt the duty of the court to direct a verdict on the theory that the absent one is dead. Page v. Modern Woodmen of America, 162 Wis. 259, 156 N. W. 137. Where, however, the evidence is ambiguous and throws doubt upon the probability of whether the family would have heard from the absent one even if he were alive, then a different question is presented. One view of such sit
Upon reflection, the result appears to be the same for practical purposes whether we say that no presumption arises except in cases of unambiguous circumstances or whether we say that-'the presumption varies in weight according to the. circumstances. In either event, a question for the jury seems to be recognized by all courts, and it is for the jury to determine under all the circumstances whether the absent one is dead or alive. Where the circumstances are unambiguous, and there is no way to account for the absent one not having been heard of without assuming his death, then the presumption is conclusive of his death. Where the circumstances of his leaving are ambiguous and cast doubt upon the probability of his communicating with his family even though he be alive, then it is for the jury to say whether under the circumstances he would naturally communicate with his family, relatives, or friends if he were alive. In the one view, the jury is to determine whether the presumption prevails. In the other, it is for them to determine whether under all the facts and circumstances of the case the absent one is dead or alive. No matter what the philosophic reasoning may be, the result is the same, in1 that a jury question is presented.
While the court may direct a verdict establishing the death of the absent one where the circumstances are unambiguous, where the circumstances under which one leaves his home are ambiguous and cast doubt upon the probability of his communicating with his family even though he be alive, it must in nearly all instances give rise to a question of fact to
This conclusion makes it unnecessary for us to> consider whether the policy in question was a Wisconsin or South Dakota contract, and whether the law of South Dakota or Wisconsin, so far as it relates to the presumption of death
By the Court. — Judgment affirmed.