73 So. 806 | Miss. | 1916
delivered the opinion of the court.
Suit was instituted in the circuit court by Mrs. Sue S. Brame, plaintiff (appellee here), against the New York Life Insurance Company, based upon a policy of insurance issued, by the defendant upon the life of Lex Brame, Jr., the husband of appellee, in which policy the appellee is the payee or beneficiary. By said policy the insurance company agrees to pay the beneficiary one thousand eight hundred dollars “at the home office of the company, in the city of New York, immediately upon receipt and approval of proofs of the death of Lex Brame, Jr., the insured, and in addition thereto a sum equal to the annual premium on this policy, multiplied by the number of years this policy shall have been in force, including the year in which death occurs, provided such death shall occur before the twenty-seventh day of March in the year nineteen hundred and nineteen.”
The material averments of the original declaration necessary to he . noticed by us for, an understanding of this opinion are: That. on August 8, 1907,»Lex Brame, Jr., left Jackson, Miss., the place of. his resi
The court, at the instance of the plaintiff, gave the two following instructions: •
“(1) The court instructs the jury for the plaintiff that, if they believe from the evidence that Lex Brame, Jr., died on August 8, 1907, then the jury will find for the plaintiff for the face of the policy with six per cent, interest from that date, and also for all of the premiums paid by the said Lex Brame, Jr., prior to that date, at the tabular annual rate, with six per cent, interest thereon from August 8, 1907, and also for all of the premiums ■ paid since August 8, 1907, at the tabular annual rate, with six per cent, interest thereon from the respective dates on which the same were .paid, and the form of the jury’s verdict would be: ‘We the jury, find for the plaintiff in the sum of three thousand seven hundred ninety-six dollars and forty-four • cents. ’
*842 ' “(2) The court instructs the jury for the plaintiff that, should they believe from the evidence that Lex Brame, Jr., did not die on August 8, 1907, they must nevertheless find for the plaintiff for the face of the policy, to wit, two thousand six hundred forty-nine dollars and seventy-five cents, with interest at the rate of six per cent, per annum from August 8, 1914, and the form of their verdict would he: ‘We the jury, find for the plaintiff in the sum of two thousand seven hundred forty-two dollars and forty-three cents.’ ”
All instructions requested by the defendant were refused.
An examination of the two above instructions shows that the jury was first peremptorily instructed to return a verdict in favor of the plaintiff; second, that if they believed from the testimony Lex Brame, Jr., died on August 8, 1907, then they should assess the amount of recovery in accordance with instruction No. 1; third, if they did not believe the insured died on August 8, 1907, then their verdict would be for the plaintiff and the amount of- damages would be assessed as if Brame died on August 8, 1914. The jury returned a verdict in accordance with the first instruction, which, in effect, means that they found that Brame died on August 8, 1907, viz. the night of his’ disappearance in Vicksburg.
The testimony introduced on the trial necessary to be referred to is: That Lex Brame, Jr., left his home in Jackson, Miss., on a business trip, expecting to.be gone for only a day or two. He went from Jackson to Vicksburg, thence to Valley Park, and back to Vicksburg on the night of August 8, 1907. • He talked to a number of friends and acquaintances between the time of leaving Jackson and the time he was last seen in Vicksburg. He seemed in good health and spirits. He had supper the night of his disappearance at a hotel in Vicksburg, in company with a friend of his from Jackson, after which they attended
The appellant contends that the' case should be re- • versed, first, because the plaintiff in her declaration first attempted to allege a cause of action under section 1914 of the Code, and when -a demurrer was sustained thereto she then alleged- the fact of his actual death, which was, in effect, an attempt to recover in one count of a declaration for a statutory cause of action, and also for a common-law cause of action.
We think, however, that this point is not well taken because the legal effect of the amended declaration' is simply that the insured is dead. It is true that there are a number of allegations contained in .the declaration which are surplusage. All that the plaintiff need have alleged about the death was simply the fact of the death, and that plaintiff had sent the insurance company proper proofs of the same.- It was proper' for the court to have allowed plaintiff- to -amend her declaration.
It is next contended that the cause of action is barred by the six-year statute of limitation (section 3097, Code of 1906). This, to our mind, is the most serious question in the case. The suit was filéd more than seven years after the disappearance of Brame. The jury found that there were facts and circumstances showing that Brame died on August 8, 1907, or more than six years before the filing of this suit. ' Section 3097, Code of■1906, provides:
*845 “Actions to be Brought in Sis Tears. — All actions for which no other period of limitation is 'prescribed shall be commenced within sis-years next after the caiise of such action accrued, and not after.”' 1
It is therefore imperative to ascertain when this cause of action actually accrued. The insurance policy provides that the insurance company agrees to pay the amount due under the policy “immediately upon receipt and approval of proofs of the death of the insured.” The testimony in the case- shows that shortly after the disappearance-of the insured a full account of his disappearance was made- by his uncle to the insurance company, giving the insurance company, all of the facts connected with the disappearance. In this , letter to the company Judge Brame stated that, in his opinion, his nephew died in Vicksburg the night of his disappearance. A number of affidavits of witnesses, substantiating the facts and corroborating his letter, were also sent to the company at the same time. The defendant company has printed blanks which it sends to beneficiaries upon which to make out proofs of death. In this case the company declined to send these blanks, but took the position that it believed the insured to be alive. It also sent a detective down to thoroughly investigate the matter. The attorney for the plaintiff and other relatives of hers lent every assistance to this detective during his investigation, and gave him all the facts they had relating to the disappearance. The beneficiary herself declined to believe that the worst had happened. She 'believed that her husband was alive and would return home. As time passed she hoped against hope. Now’ and then there would come a rumor that her husband had been seen in New Orleans. This rumor was run down. Another that he had been seen in Hot Springs. This proved to be false. Thus matters went on until the expiration of seven years after the date of his disappearance. At that time another request was made of the insurance
“Thus, where the'issue is upon the life or death of a person, once shown to have been living, the burden*847 of proof lies upon the party who asserts the death. But after the lapse of seven years, without intelligence concerning the person, the presumption of life ceases, and the burden of proof is devolved on the other party.”
“A-person shown not to have been heard from for seven years by those, if any, who, if' he had been alive, would naturally have heard of him, is presumed to have been dead, unless the circumstances of the case are such as to account for his not being* heard of without assuming his death; but there is no presumption as to the time when he. died, and the burden of proving his death at any particular time is upon the party who asserts it.” Stephen, Digest of Evidence, árt. 99.
The rule is thus briefly stated in Jones’ Commentaries on Evidence, vol. 1, section 61:
“Like all other rules, it took its shape from necessity — the necessity of settling property rights and very often status. As the courts had to resort to the presumption of the continuance of life, in the absence of direct proof of life or death,'in order to settle important rights which were often involved, it became equally necessary to adopt some counter presumption in classes of cases where the death of the person would in the ordinary course of events seem more probable than the continuance of life. Accordingly, in analogy to certain English statutes, the courts adopted the rule that £a person, shown not to have been heard of for seven years by those (if any)- who, if he had been alive, would naturally have heard of him, is presumed to be dead, unless the circumstances of the case are such as to account for his not being heard of without assuming his death.’ ”
In America this rule has generally been applied only to those who are absent from their home. The rule is thus stated in 8 R. C. L. section 5, p. 708:
“By the English common law, since James I, at the -close of a continuous absence abroad for a period of*848 •seven years, during which nothing is heard from the person, death is presumed; but the presumption is open -to be rebutted by- proof or counter presumptions. This is the rule very generally adopted in this country, either by statutory enactments or adjudications following the common law, and it is almost universally held- that for all legal purposes a presumption of his death arises from the continued and unexplained absence of a person from his home or place¡ of residence without any intelligence from or concerning him for the period of seven years. The -fact that the absent person is a fugitive from justice does not prevent the presumption from arising, but is admissible to rebut the presumption of death.”
“The view generally obtaining in England and followed by a number of courts in this country is to the effect that, in the case of an unexplained absence of a person for seven years, the law raises no presumption as to the precise time of his death.” 8 R. C. L. section 7, p. 711.
“Opposed to the presumption of the continuance of life, and of sufficient force to overcome it, is the presumption of death which arises in the case of a person who has been absent from his last or usual place of residence and from whom no tidings have been received for a considerable length of time. The length of absence necessary to raise the presumption of death is not governed by any arbitrary rulé, but, as some general rule is necessary, seven years have been usually established as' the time, the lapse of which is sufficient to raise this presumption.” 13 Cyc., pp. 297-298.
See also, note, 104 Am. St. Rep. 198.
Had Mrs. Brame instituted this suit before the expiration of the seven years, the fact of proving the actual death of her husband would have devolved on her. The insurance company elected at that time to treat these proofs as not being -satisfactory. Mrs.
The action of the defendant company in refusing to pay this claim in the first instance, on the ground that Brame was not dead, and that no satisfactory proofs •could therefore he furnished it at that time, and the acquiescence by the plaintiff in this decision of the defendant prevented the cause of action from accruing .at that time and continued the matter in abeyance. A somewhat similar case is that of Keith v. Modern Woodmen, etc., 167 Iowa, 239, 149 N. W. 225, L. R. A. 1915B, 793. In the Keith Case the insurance company was notified of all of the facts and circumstances relating to the disappearance of the insured, and upon being requested by one of the beneficiaries as to what they should do, an officer of the •company wrote them, in effect, that if they believed their father was dead, it would probably be worth while to keep his certificate in force for the nest six years, as it was customary for the company to. pay a claim after a continuous disappearance of seven years. The •court in that case held that the insurance company was estopped from pleading the six-year statute of limitations.
A case, however, very much like the one under consideration is that of Behlmer v. Grand Lodge, A. O. U. W., 109 Minn. 305, 123 N. W. 1071, 26 L. R. A. (N. S.) 305 In that case the insured, Behlmer, disappeared. His wife paid the premium on his insurance policy for one year. She then waited six years, or until seven-years had elapsed since his disappearance, and requested the company to furnish proper blank forms on which
“The question before the court then turns upon wheth* er respondent was compelled to act upon the evidence of death available at the time she stopped payments, or whether it was permissible for her to avail herself of all the circumstances surrounding the case not only prior to July 29, 1902, but in addition thereto evidence growing out of the presumption arising from seven years’ absence of the insured. If she was limited by the terms of the contract to the evidence before her at the time she stopped payments, then, in our opinion, she failed to present the proofs within a .reasonable time; but if, under- any permissible construction of the contract, she had the privilege of waiting until the presumption of death arose before submitting the proofs of death then she offered to present proofs, and commenced this action within a reasonable time after such presumption accrued, and the action is not barred.
“Much may be said on both sides of the question; but a majority of the court are of opinion that respondent was not restricted to the evidence available to her at. the time she stopped making payments on the certificate, July 28, 1902, for the reason that, while such evidence seems to have satisfied her that her husband was dead, yet there was then no known evidence by which his death could have been legally established. An attempted proof of his death before the expiration of the seven years would have been necessarily insufficient, a nullity. A party is not bound to do a useless thing. The certificate did not require the proofs to be*852 filed within any particular time, and hence a reasonable time, in view of all the circumstances of the case, was. a compliance with the contract. In an ordinary case of death, where the proofs to establish it are available, there is no reason for the application of the rule of evidence growing out of the presumption of death after seven years’ disappearance,' and in such case the beneficiary would be bound to furnish the proofs within a 'reasonable time, which might be a few days, weeks, or months, according to the circumstances; but in a case where there -is no positive evidence, and death can only be established with the aid of thé presumption after the period of seven years has elapsed, why should the beneficiary be required to make out a case from proofs which are necessarily incomplete ?
“Appellant insist that, in the absence of any provision in the contract limiting the time within which the proofs must be filed, reasonable time is to be measured by the statute of limitations, viz. six years, which in this casé expired July 29, 1908, that in no case has the beneficiary more than six years from the date of death to file the proofs thereof, and that the action must be brought within a reasonable time thereafter. According to this construction, all certificates become void if proofs are not furnished within six years from the date of death. Is that the meaning of this contract1? Such associations are organized for the express purpose of providing a beneficiary fund for those members who contribute for the benefit of the beneficiaries in other certificates, and unless it clearly appears from the language of the contract that it was intended to cut off, without relief, those cases where evidence of death cannot be secured within six years, such construction should not be adopted. It is manifestly' just that beneficiaries who have paid the assessments' up to the time of the death of the insured should receive the reward for carrying the burden. When, from the circum*853 stances, the presumption arising from seven years’ absence is necessary to complete sufficient proof of ■death, reasonable time to present such evidence after it accrues is necessary in order to make the certificate ■of any value to the beneficiary.
' “We believe the proper construction of this class of contracts to bé that a cause of action does not arise until proofs of death are furnished, and that the time for furnishing the same is not limited to six years from the time of death, but ‘ shall be made within a reasonable time after death, according to the circumstances of each particular case, and it is our opinion that the fair and reasonable meaning of the contract is that the parties intended that the beneficiary should have the benefit of the evidence of death arising from the disappearance of the insured for the period of seven years, other evidence of death being in itself insufficient, that respondent did not waive this right by assuming that the insured was dead, and in stopping payments, but that she tendered the proofs and .commenced the action within a reasonable time after the evidence accrued.”
In a case' of this kind it is necessarily uncertain whether or not the insured is dead. It is therefore impossible for the beneficiary to make out proper or satisfactory proofs of death until the expiration of the seven years, unless there are such facts and circumstances surrounding the disappearance as would strongly point to the insured having met his death at that time. To this class of cases belong those above referred to, where the facts indicated that the insured had been drowned or had been killed in a battle or in a storm. In cases like the one at bar, where both the insurance company and the beneficiary were uncertain as to the fact of the death, it would be harsh, inequitable, and unjust to hold that the statute of limitations was applicable. The very wording of the policy of insurance, as above, set out, gives to the beneficiary a reasonable time within which
The lower court was in error, however, in granting its first instruction to the jury, in this respect only i That instruction authorized the jury to allow the plaintiff to recover interest at the rate of sis per cent, on the amount of the policy and the premiums paid by the' insured before August 8, 1907. The insurance in this, policy only promised to pay the same after receipt and approval of proofs of death. There was no receipt and no approval, and no proper rejection of these proofs, of death, until the .filing of this suit on January 16,. 1915. No.interest is recoverable, therefore, on the amount named on the face of the policy and on the premiums paid by Les Brame, Jr., until after January 16, 1915. The judgment of the lower court allowing interest on the premiums paid by appellee from the date of payment was correct.
The judgment of the lower court will be set aside,, and judgment entered here in favor of appellee in ac- ' cordance with this opinion.
Affirmed.