152 Minn. 20 | Minn. | 1922
Action to recover on a benefit certificate issued by the defendant to Peter August Eklund on November 16, 1901, in which plaintiff was named as beneficiary.
She and Eklund were married in June, 1901, and lived together until June, 1905, when he left her at Moorhead in this state, where they resided after their marriage. There were three children, two born before he left and one shortly thereafter. We infer from the evidence that Eklund had embezzled funds of his employer and feared a criminal prosecution.
After his departure and until July 3, 1911, Eklund wrote quite regularly to his wife and to his foster mother. His letters were uniformly affectionate, expressed contrition for his misconduct, and
When he ceased to write, his wife began a diligent search for him, which she kept up for about three years. She wrote to the chiefs of police of Hillsboro, Beaverton and Portland, Oregon; Reno, Nevada; San Francisco, Sacramento and Los Angeles, California; Seattle and Spokane, Washington; and other places in the west where her husband had been. She advertised for information about him in The War Cry, the organ of the Salvation Army, and had a copy of one of his recent photographs published in that paper and also sent several copies of the picture with her letters of inquiry. She wrote letters of inquiry to the Portland board of health, to a Portland newspaper, to the contractors for whom he had worked, and to the hospital where he had been when he was injured. In prosecuting her unsuccessful search for him, she gave his name as P. A. Anderson. So far as she ascertained, he dropped out of existence after mailing the postcard to his foster mother on July 3, 1911.
Plaintiff continued to pay the assessments required to keep the benefit certificate in force until July 23, 1915, when, pursuant to one of defendant’s by-laws, her husband was suspended from the order for his nonappearance at his local lodge at Moorhead for six •months after notice requiring him to appear. In February, 1919, plaintiff requested defendant to furnish her with blanks upon which she might make proof of her husband’s death. Defendant declined to do so and some correspondence followed. In May she had the
“Or if the action arises upon the death, or alleged death, of a member, within three years from the date of such death,”
(3) that if Eklund died prior to July 23, 1915, proofs of death should have been furnished within a reasonable time, and that this was not done.
The doctrine of the common law was that a man, absent from his place of residence and neither seen nor heard of for seven years, there being no explanation of his absence, was presumed to be dead. The presumption might be rebutted by counter proof. There was no presumption that death occurred at any particular time, though it was held in some states, but not in Minnesota, that, in the absence of evidence to the contrary, the presumption was that death occurred at the end of the seven year period. In substance, the foregoing rules prevail in this state. 1 Dunnell, Minn. Dig. § 3434.
In the case at bar, in response to special interrogatory, the jury found that Eklund died prior to July 23, 1915. Whether or not there is evidence to support this finding is the important question in the case. We are of the opinion that there is. It seems to us, judging from the regularity with which he wrote to his wife and foster mother for the six years following his departure from Moor-head, that they would have heard from him after July 3, 1911, if he were not dead. There was no reason for the abrupt termination of his correspondence at that time. Apparently he entertained a genuine affection for his family. There is nothing in the correspondence to indicate an estrangement from his wife or that his expressed desire for a reunion in 1911 was insincere. If he had not died prior to 1915, it would seem that his wife’s persistent and widespread inquiries would have elicited some information as toi his whereabouts. The jury’s finding is not unreasonable if the usual
It is urged that it does not, for the reason that Eklund had no fixed place of abode. We do not sustain this contention. A man may be away from home following an occupation which takes him from place to place. He writes regularly to his wife, with whom his relations are cordial. With no explanation, his letters cease to come. She makes diligent inquiry, but cannot find him. Under such circumstances, there is no good reason why the presumption should not obtain. Granting that death will not be presumed after the lapse of seven years, when nothing is shown but the fact of a man’s disappearance, the presumption should arise if it is also shown, as it was here, that a thorough search for him was made. These views are supported in a measure by the following cases: Renard v. Bennett, 76 Kan. 848, 93 Pac. 261, 14 Ann. Cas. 240; Gorham v. Stettegast, 44 Tex. Civ. App. 254, 98 S. W. 665; Marquet v. Aetna Life Ins. Co. 128 Tenn. 213, 159 S. W. 733, L. R. A. 1915B, 749, Ann. Cas. 1915B, 677; Wright v. Jones, 23 N. D. 191, 135 N. W. 1120; Prudential Ins. Co. v. Gatz, 182 Ky. 218, 206 S. W. 299; Wentworth v. Wentworth, 71 Me. 72.
If the amendment to defendant’s by-laws, adopted in 1909, is applicable, the contract between the parties has been substantially changed. Instead of having three years after making proof of death within which to bring an action, the beneficiary is limited to three years from the date of the death of the insured. In a case where death can only be established by the aid of the common law presumption, it would be within the power of the defendant to defeat a recovery by proceeding under the by-law to suspend the member who has disappeared. If the beneficiary sued within three years thereafter, her action would fail because' she could not establish the death of the insured. If she waited longer, she would fail because of the by-law. Plaintiff was entitled to the benefit of the presumption and had the right to defer bringing her action until seven years had elapsed. The by-law was unreasonable as applied to certificates issued prior to its adoption. Behlmer v. Grand Lodge A. O. U. W. 109 Minn. 305, 123 N. W. 1071, 26 L. R. A. (N. S.) 305;
Plaintiff could not make proof of her husband’s death prior to July 3, 1918, if she was to have the benefit of the presumption. The proofs were made within a year thereafter. This- was within a reasonable time. As to this feature of the case, Behlmer v. Grand Lodge A. O. U. W., supra, is decisive.
Affirmed.