73 Ind. App. 186 | Ind. Ct. App. | 1920
Action by appellee against appellant on a policy insuring the life of appellee’s husband. There-was a verdict and judgment for appellee. The only assigned error is the action of the court in overruling the motion for a new trial.
On the trial there was no direct evidence of the death of the insured, but evidence was submitted by appellee showing his disappearance more than seven years before the commencement of the action; that at the time of his disappearance insured was fifty-three years of age, was married and living with his wife and children for whom he had great affection; that he was at the time addicted to the excessive use ■ of intoxicating liquor; that he had had pneumonia which left him in poor health resulting in his acquiring the morphine habit, because of which he had contemplated suicide; that since his disappearance no information whatever as to the whereabouts of the insured had been received, though diligent search had been made by his family and friends. On the other hand, appellant submitted evidence tending to show that a short time before his disappearance the insured had committed the crime of forgery; and two witnesses testified on behalf of appel
The only questions involved in this appeal relate to the law governing the presumption of death which arises from an absence of a person after the lapse of seven years. It is conceded by appellant that a presumption of death may arise from the continued and unexplained absence of a person from his home or place of residence for seven years. Appellant, however, contends that, under the evidence in the case at bar, there is no state of facts from which such a presumption could have arisen; that such presumption arises only from an unexplained absence, and that, where the absence is explained, or the person has been seen during the period of his absence, the presumption does not arise. These questions are presented under alleged errors of the court in the giving and refusing to give certain instructions, and that the verdict of the jury is contrary to law. These alleged errors will be considered collectively.
The instructions when taken as a whole fairly state the law. The instructions tendered by appellant, so far as they are applicable, were covered by instructions given by the court on its own motion.
Judgment affirmed.