32 A.2d 704 | D.C. | 1943
This is an appeal from a judgment in favor of the defendant in an action on a life insurance policy. Appellant, mother of the insured, was the named beneficiary. She offered no direct proof of the death of the insured, but relied upon presumption of death created by Section 14 — 501 of the Code.
The testimony offered by appellant was to the effect that the insured was horn August 8, 1905 and came to the District of Columbia in 1924 with his mother, his stepfather and his half-sister. They made their home at 1231 Fourth Street, Northwest, where the mother has. continuously resided. In 1928, the insured left Washington and went to Baltimore, Maryland, seeking employment. Apparently he was not successful in finding immediate employment but did later obtain employment and resided there between 1928 and 1932, though during this period he spent some time in both Washington and New York.
In the summer of 1932 the insured came to Washington from Baltimore for a few days and this was the last time his mother saw him. In October, 1932 the insured came from Baltimore to Washington but his mother was confined in a hospital and did not see her son on this occasion. On the evening of the day he came from Baltimore he was at his mother’s home and after dinner stated to his half-sister that he -,-
On cross-examination appellant admitted that the insured had had some difficulty with the local police for minor crimes, and in 1930 and 1931 had written letters home using the assumed name of “Leon Bess.”
This was the substance of appellant’s testimony, other than that the insured was unmarried and that some minor articles of clothing belonging to him had remained at her home since 1928. Appellee offered no testimony.
Under our statute, which is but a declaration of the common law rule,
If “domicile”, as used in the statute, means residence or usual abode, then the record more strongly indicates that insured’s residence was Baltimore. In the state of the record before us, it is immaterial whether domicile is used in the statute in its strict sense or in the sense of residence ; because, in the absence of facts to the contrary, the place where a man lives is properly taken to be his domicile.
Nor is there evidence that insured has not been “heard from.” His mother and sister have not heard from him but the statute does not confine lack of intelligence of the absentee to members of his family, as it is not a matter of pedigree.
Since further investigation and search may produce evidence sufficient to raise the presumption of death or even evidence of actual death of insured, the judgment below should be modified to the extent that it shall not operate as a bar to a future action based on such additional evidence.
As so modified the judgment is affirmed.
Modified and affirmed.
Sec. 14 — 501: “If any person shall leave his domicile without any known intention of changing the same, and shall not return or be heard from for seven years from the time of his so leaving, he shall be presumed to'be dead, in any case where his death shall come in question, unless proof be made that he was alive within that time.”
Jones v. Metropolitan Lite Ins. Co., 73 App.D.C. 92, 116 F.2d 555; National Union v. Sawyer, 42 App.D.C. 475.
District of Columbia v. Murphy, 314 U.S. 441, 455, 62 S.Ct. 303, 86 L.Ed. 329.
Posey v. Hanson, 10 App.D.C. 496, 506.
Lemire v. National Life Ass’n, 194 Iowa 1245, 191 N.W. 67.
Posey v. Hanson, supra.
Wentworth v. Wentworth, 71 Me. 72; Hitz v. Algreen, 170 Ill. 60, 48 N.E. 1068.