108 Ky. 11 | Ky. Ct. App. | 1900
Opinion oír the court by
Reversing.
On July 24, 1888, appellant issued a policy of insurance on the life of James W. Tate, payable to his wife and children at his- death. The amount of the policy was $5,000, and it was to be a paid-up policy after fifteen annual payments. On' June 30, 1897, appellee, Edmonia Martin, filed this suit to recover of appellant the amount of the policy, alleging that she was the only surviving child of the insured; that his wife was dead. She also averred that the assured was dead, alleging that on the 16th of March, 1888, he had left his home in Frankfort, Ky., and gone from the State, and had not returned since, — a period of seven successive years¡; that his relations to his family were always pleasant and unusually happy, and there had been no- cause to change those relations.; that he was last heard from on December 12, 1888, and that his absence from the State without being heard from had been continuous from that time. Appellant filed an answer in which it denied that the assured was dead. It alleged that for many years prior to his leaving the State he1 had been Treasurer of the State of Kentucky; that as such he had embezzled a large amount of money belonging to the State, and in June, 1888, was indicted for the crime of embezzlement; that on account of this offense he had- fled from the State, in the full vigor of health, to avoid impending disgrace and punishment;
The proof introduced on the trial substantially established the facts alleged in the answer as to the circumstances under which Tate left the State. It also showed that he was then fifty-seven years of age; that, after leaving the State, he wrote to his wife and daughter regularly until December, 1888. The first of these letters was written from British Columbia; the next from a steamer on the way to Japan; several from Japan, where he seems to have remained for some time, and then to have gone to China. He finally returned to Japan, and fronr there, in November, 1888, he came to Tacoma, Wash. His last letter was written-from San Francisco, Cal., December 3, 1888. In this letter he speaks of having had a miserable cold; says he writes a few lines as he passes along, and will write 'again in a short time. He was then, according to his letter, going through California to the Territories, and said he would write them where to address him. After this he was not.
It is also insisted for the appellant that thé statute only applies to tho-se leaving the State who have no good reason for staying away, and. that a fugitive from justice, for whose apprehension there is a reward of $5,000 outstanding, is not within its spirit or purpose. We are referred by counsel to some authorities sustaining this position, but, on investigation, we do not find, the exact point to have been adjudicated. On the other hand, it is insisted for appellee that, if her father is not presumed dead now, sihe would have the same difficulty in suing on the policy ten years from' now, and that this was the evil the statute was intended to remedy. The question is not free- from difficulty, but we do not feel warranted in interpolating into a statute exceptions which it does not contain. Fugitives from justice are not the only class of persons who might have good reasons for not returning, and, if all these classes of persons were beld not within the statute as a matter of law, its purpose, in many cases, would be entirely defeated. Under our system of trying cases, if there is any evidence in support of an issue it must be submitted to the jury, and we think it a sounder and better rule to leave the question of death in all these cases to be found by the jury on all the facts of the case. When the plaintiff shows that a resident of the State has been absent seven successive years from the time, he left, or from the time he was last heard from, the burden of proof-shifts to
The court instructed the jury as follows: “If the jury believe from the testimony that the insured, J. W. Tate, while a resident of and living in Franklin county, Kentucky, left the State of Kentucky on the 16th day of March, 1888, and that for seven years continuously, from the 3d day of December, 1888, nor since that time, has returned to the State or been heard from since December, 1888, they ought to find for the plaintiff.” “The law presumes one dead who departs from the State, and is gone for seven consecutive years without returning, and has not been heard from since he left, unless it be shown- that he has returned to the State or been heard from within that time, or at any time since, or that he was alive during that time.” By these instructions the jury were, in terms, told to find for appellee if Tate had ‘been absent from' the Stale for seven years without being heard from since December, 1888. The question of whether he was in fact alive or dead was not sutmitted to the jury, nor were they authorized, by these instructions, to find for the appellant if they did not in fact believe him dead. Instead of the-instructions we have quoted, the court should have told the jury that they ought to find for the plaintiff if they believed from all the evidence that Tate was dead on June 80, 189T; otherwise, for the defendant. The
Petition for re-hearing filed by appellee and overruled.