265 Pa. 129 | Pa. | 1919
Opinion by
July 11,1917, Katherine Groner sued to recover $2,000 insurance on the life of her husband, Jacob Groner, who she alleged died in the year 1917; the defendant beneficial association claimed there was no sufficient proof of death; judgment was entered on a verdict in plaintiff’s favor, and this appeal followed.
Mrs. Groner depended upon evidence of facts justifying the presumption of her husband’s death after seven years’ unexplained absence. The testimony produced shows Jacob Groner and his wife lived together for some twelve years in a house which they had built in Bradford City, Pa., where two children were born to them, one, a daughter, still alive; on November 11, 1907, Groner left home with the intention of going to Bartlesville, Oklahoma, to work at his trade of machinist; his wife accompanied him to Salamanca, and he mailed letters to her “all along his route,” sending several from Oklahoma; the shop where Groner was engaged failed, and he wrote home for money, saying he was out of work; thereupon $30 was remitted to him; he was next heard of from Coalinga, California, when a check arrived for $50, sent by him to Mary Groner, the daughter, through a man named Prank Thompson; in 1909, Groner wrote “a small little note stating he was in Hanford, California, getting his teeth fixed”; and, from that time on, no one received any communication whatever from him.
Plaintiff further testified that her husband, so far as she “could find out,” had no permanent place of abode in the West, but “seemed to go from one place to another,” wherever he could get a job in the “machine shops scattered among the camps where new [oil] wells were coming in”; that she had written everyone she knew of from Bradford, “or anyone [she] heard of, asking if they could give [her] any information as to [her] husband’s whereabouts”; that she communicated with several western oil field men (naming them), in an effort to locate him; that her brother-in-law went on a trip “and tried
In addition to the circumstances already recited, it may be noted that Groner had “a pleasant home” in Bradford; his parents, who were much advanced in years, and many friends, lived there; when he left, “his health was poor.” In fact, the evidence fails to indicate any reason, other than death, for this man’s total disappearance and utter lack of communication with his family after 1909. True, defendant produced a written deposition of a witness, one Gilbertson, who said that he had seen Groner in California, stating “it might have been in 1913 or 1914 — I don’t know the exact date”; and the jury were told by the trial judge that, if they believed this testimony, they should find for defendant. It is evident from the verdict, however, the jury did not credit the witness; and that, from the evidence produced.by-plaintiff, they concluded Groner must be dead, as alleged by her.
An examination of the Pennsylvania authorities shows the evidence in this case was ample to sustain the verdict rendered. In Burr v. Sim, 4 Wh. 149, the person whose death was at issue left his home in 1792 for South America, and was never again heard from; the report does not indicate any special search. We held the English rule, “that, in the case of an absent person of whom no tidings are received, the presumption of the continuance of life ceases at the end of seven years,” to be the law of Pennsylvania. In Bradley v. Bradley, 4 Wh. 173, the trial judge charged: “It was admitted that Francis Bradley had been absent for sixteen years and upwards,”
In the case at bar, it appears that plaintiff’s husband, after leaving his home in Bradford, did not at any time take up a permanent residence elsewhere; on the contrary he seems to have roved from place to place. Hence the rule referred to, in the three cases cited, as to the requirement of showing absence for seven years from the last known, “settled” or “established,” domicile, has no relevancy.
Plaintiff occupied the close relation of wife, to insured; and it has been held, in other jurisdictions, “a wife who has not been advised of his whereabouts, by her absent husband......, for the period required to raise the presumption of his death, has the right to believe that he is dead, although having made no attempt to find him”: 17 Corpus Juris, 1171. In short, the proof required, so far as the obligation to search for the missing one is con
As the record stands, unless some reversible trial error, in submitting the issues to the jury, is properly before us for review, the judgment for plaintiff must stand; and, in this regard, it must be remembered that the sole exception taken to the charge was a general one, asked and granted after the jury retired. Therefore, appellant may assign for review only material matters “so inadequately presented as to be calculated to mislead the jury” or “actual errors of law,” it being the rule that we “will refuse to review matters not called to the attention of the trial judges unless the alleged errors are basic and fundamental” : Sikorski v. P. & R. R. R. Co., 260 Pa. 243, 250, and Mackowski v. Phila. R. T. Co., 265 Pa. 34.
After detailing the circumstances of Groner’s departure for the West, his absence unheard of, for seven years, the efforts to locate him, etc., the trial judge immediately charged, “If you find the fact that Katherine Groner has not heard from her husband since 1909, under the circumstances as detailed to you here, the law will raise the presumption that he is dead.” Counsel for defendant asked the court, “Did you make clear to the jury that it is not absence of the man for seven years, but the unexplained absence that raises the presumption of death”; whereupon the judge stated: “I intended to so do if I have not; it is not the fact that a man goes away and has been away for seven years, but it is his unexplained absence which gives rise to the presumption which the law makes that he is dead. If he goes away under normal conditions, as testified to here by Mrs. Groner, and wrote to her afterward, then, for some unexplained reason, ceased to write to her, or to any person,
When the parts of the charge complained of are read with their context, particularly the recital of facts depended upon by plaintiff to show the death of her husband, and when the inquiry put by counsel, which called forth the last above quoted instruction, is given due consideration, we are not convinced that any “actual error of law” appears, or that any material matter was “so inadequately presented as to be calculated to mislead the jury.” If the charge is taken as a whole, it is quite plain the trial judge, when he said the absent one’s failure to write for seven years, “would give rise to the presumption that he was not alive,” meant merely that such failure to Write, together with the other circumstances in the case, was sufficient to give rise to the presumption that Groner was dead; and this, if, and only if, the jury believed the facts and circumstances detailed to them by plaintiff and her witnesses. The charge not only reviews plaintiff’s evidence, but also that depended upon by the other side; and the trial judge instructed the jury, if they believed the latter, the verdict must be for defendant, that the credibility of the witnesses was for them to consider and determine, and, finally, that the burden of proof was upon plaintiff to establish her case by a fair preponderance of evidence. No “basic” or “fundamental” errors appear ; if counsel for appellant were dissatisfied with the answer made by the court to their inquiry, which was practically a request for additional instructions, they should have called the attention of the trial judge to the matter of their dissatisfaction, and, if not corrected, taken a special exception. The first two assignments of error are overruled.
The remaining assignments complain of the judgment for plaintiff and the refusal to grant defendant a new trial; they rest upon an allegation, based on an ex parte affidavit of a juror named Lindholm, that he and certain
The assignments are overruled and the judgment is affirmed.