Appellant’s intestate enlisted in the United States Navy on May 7, 1919, and a policy of war risk insurance was then issued to him. On July 21, 1921, while the insured was still in the service and the policy of insufanee in force, and aрparently while his ship, the Rochester, was in port at Newport, R. I., he simply disappeared, and has not since been heard from. The case differs from that of Equitable Life Assur. Soe. v. Sieg,
Under the tеrms of the policy it was necessary that the plaintiff, in order to recover, establish the faсt of death of the insured before lapse of the policy; that is, prior to August 20, 1921. If, to prove this fаct, the plaintiff relies upon the presumption of death arising from seven years’ unexplainеd absence, without tidings, and seeks further to show that such death should be presumed to have occurred during the first month of the absence, she must, under the doctrine of Davie v. Briggs,
Under the doctrine of Davie v. Briggs no presumption оf death at any specified time prior to the expiration of the seven years arises withоut some proof of the character above referred to. The question is not whether thе insured is now to be presumed to be dead, but whether there is any substantial evidence tending to establish his death prior to August 20, 1921. Unless the cause of action accrued prior to 'that date, the plaintiff cannot now recover, and the court must search the record for some substantial evidеnce tending to establish death before that time. Lacking such evidence, the presumption of death is ineffective or nonexistent.
Nor do we regard the presumption of innocencе of the crime of desertion as the equivalent of substantial evidence of death, or of facts from which death may be inferred, in a ease in which the issue of desertion, or of innocence of that crime, is but collaterally involved. Many situations consistent both with innocence and with continued life of the insured beyond the critical date may reasonably be imagined. But, even if given some evidential force, the presumption of innocence would, in our opinion, constitutе but a scintilla of evidence of death, and this is not-enough. Nor can there be a question of сonflicting presumptions where the defendant places no reliance upon the presumption of continuing life, but rests its case upon the claim of complete failure of prоof of death during the life of the policy.
Plaintiff also urges that, inasmuch as evidence of the existence or nonexistence of specific peril or impending imminent danger was within the knowlеdge and control of the defendant, and was not offered, it will be presumed that such evidencе, had it been offered, would have been unfavorable to the defendant. Plaintiff thus concludes thаt the withholding of evidence upon this point is to be accepted as ‘the equivalent of аffirmative evidence of the existence of such dangers and peril. This is obviously a non sequitur. The initial burden of proof was upon the plaintiff, and the evidence was equally available to her through interrogatories or depositions. From the proofs offered the inference is simply thаt the insured went ashore and did not return. This, as we have said, does not constitute substantial evidence of death during the life of the policy, certainly not such conclusive evidence as would рreclude the trier of the facts, whether jury or the court, from
Affirmed.