Lead Opinion
delivered the opinion of the court.
In February 1894, the New York Life Insurance Company issued a policy on the life of one James Hoick, payable on his death to his wife, Nora D. Hoick. In May, 1911, the beneficiary instituted an action against the insurance company to recover on this policy. Her right to recover was based upon the ground that the insured had disappeared, and had not been heard from for more than seven years prior to the commencement of her action. The complaint also alleged the various steps taken by plaintiff to ascertain and learn the whereabouts of the insured, and whether he was alive. The trial resulted in a verdict and judgment in favor of plaintiff, to review which the insurance company has brought the case here on error.
A general demurrer to the complaint was interposed, based upon the ground that it did not allege the death of the insured, which was overruled, and this is assigned as error. The theory of the complaint was that the insured was presumed to be dead, because he had disappeared, and had been absent for more than seven years without tidings, and that diligent search and inquiry had been made to ascertain his whereabouts. In other words, plaintiff did not ground her action upon knowledge of the actual death of the insured, but upon allegations of fact, from which it would be presumed he was dead. It is not claimed that the averments in the complaint are not sufficient to raise this presumption, but its sufficiency is attacked solely upon the ground that it does not specifically aver the death of the insured. When
Following the averments respecting the disappearance of the insured, and his absence without tidings, it was stated: “And by reason of said disappearance for said period of more than eight years, the said James Hoick became and was, and is legally dead, and became and was and
Counsel for the defendant company contend that the presumption of death, arising from seven years’ absence without tidings, merely takes the place of evidence, by operation of law, which operates to determine on which party rests the duty of proceeding with the evidence, and cannot be invoked to aid in the construction of a pleading. We are dealing with a pleading the sufficiency of which is challenged for want of the averment of necessary facts, and not with the burden of proof. In Re Benjamin, 77 Misc. 434, 137 N. Y. Sup. 758, cited by counsel, does not support their proposition. In that case it was said: “The so called presumption of death is a mere rule concerning burden of proof.” This was not stated in considering a complaint, but in calling attention to the proposition that the testimony intended to establish such presumption might not be sufficient “to shift the onus to those asserting continued life.” All that was decided in that case is stated in the syllabus, which reads: “The presumption of death after seven years’ absence may be rebutted by any inherent circumstance, or expressly, and
In Bradley v. Modern Woodmen of America, 146 Mo. App. 428, 124 S. W. 69, cited by counsel for the insurance company in support of their contention that the complaint is not sufficient, the action was to recover on a policy of insurance, based on the presumption of the death of the
At the conclusion of the evidence the defendant moved for a directed verdict based upon several grounds, which in effect were that the testimony was insufficient to make a ease in favor of plaintiff. This motion was overruled. Whether or not the ruling on the motion for a directed verdict was correct, must therefore, be tested by a consideration and an analysis of the testimony.
Hoick was a blacksmith, and had been engaged in that business at Black Hawk and Central City for several years. On the evening of February 22, 1902, he came home under the influence of liquor, and he and his wife had a disagreement about the payment of the premium then due on the policy, and his drinking. He denied that he had the money to pay the premium; said he had a month’s grace, and intended to sell the policy. They retired as usual, but evidently the quarrel was serious, as he left the next morning without speaking to his wife, went down town without his breakfast, and never returned to the house, although he remained in Central City until April 1st, following. During this period neither made any effort toward reconciliation. They met on the street at least once, but did not speak. They had one child, a daughter about six years old. Plaintiff sent her to the shop several times to see her father, but he seemed inclined to avoid her. About two weeks after he left his house, he sent for and obtained some of his clothing. April 1st, 1902, he came to Denver. Previous to this he sold his shop and contents, which was all the property
Subsequent to the date Hoick left his home, and before going to Denver, arrangements were made to secure a loan on the policy from the company, by a representative of both Hoick and wife. April 2nd, at the .request of Mrs. Hoick, this representative came to Denver to obtain the loan from the company. The draft for the loan was made payable to Hoick and wife jointly, and Hoick refused to indorse it unless he was paid part of the proceeds. This was adjusted by paying Hoick one-half of the amount of the loan, after deducting the premium then due. A few days later the same representative saw Hoick in Denver at the request of Mrs. Hoick, regarding his indebtedness at Central City. At none of these interviews did Hoick express any intention of returning to his home. This subject was not mentioned. He did say, however, that he intended to straighten up, and go to work; that he wanted to do what he could for his little daughter; “that I intend to take care of that girl and treat her right”; that the best thing he could do for her was to take care of the policy; that it was all he had to leave her; that he was going to pay the loan and premiums, and he could tell the folks so. Hoick was, and had been a very hard drinker, and much of the time was in a drunken condition to the extent that he neglected his business, would lock up his shop, and spend a good deal of his time around the saloons drinking. His face was bloated, his eyes blurred, his mind not clear, and it was difficult to get him to talk
At the time of the trial Hoick had four sisters and one brother living, whose depositions were read in evidence. One sister, who resided in Michigan, testified that she last saw her brother in Central City in 1896; that she had no correspondence or communication from him since that date; that prior to 1902, she received letters from his wife three or four times a year, who always did the writing, and that she knew nothing regarding his whereabouts. Another sister residing in Indiana, stated that she last met her brother about thirty-six years ago; that she knew nothing of his whereabouts; that prior to 1902, she was not accustomed
From time to time Mrs. Hoick made efforts to ascertain the whereabouts of the insured by making inquiries through the lodges or orders of which Hoick was a member, as well as others who had been acquainted with Hoick, and traveled extensively, and by publishing advertisements in newspapers with offers of reward for information as to his whereabouts, in Denver, Central City, Chicago and Kansas City. A number of newspapers copied these advertisements in substance, and commented on the disappearance of Hoick. Her counsel also made inquiries of sundry persons who knew Hoick well. At the time Mrs. Hoick made formal demand upon the com
On behalf of defendant there was testimony to the effect that in the early part of 1904, a letter post marked Bisbee, Arizona, was received from Hoick, addressed to the son of a former partner, asking whether any money due the former partnership had been collected, in which Hoick stated that he was without funds and needed money. This letter was lost, but was not answered, as there was no money to send Hoick. A witness also testified that he knew one Anderson, who was well acquainted with Hoick; that in September 1910, Anderson, who was then confined to his bed and had since died, stated to him, that for a period of fully two years after Hoick left Denver he received letters from him, from various points throughout the country; that he could not recall the places from which the letters were posted, and had destroyed them as they were of no importance. Another witness testified that in January 1910, he talked with a blacksmith (since dead), who stated he had heard that Hoick was in Australia and later in Iowa. One Parsons, who knew Hoick well, testified that while in Seattle in 1908, he saw a man on the street wearing a blacksmith’s apron he thought was Hoick. It appears from the testimony that formal demand for the payment of the policy was made upon the company by plaintiff April 10th, 1911.
The general rule is that if a person has been absent from his residence for the period of seven years or more, and in that time has not been heard of or from, by any one who would naturally hear from him were he alive, the presumption arises that he is dead, unless the circumstances are such as to account for his not being heard of or from without assuming his death. Davie v. Briggs, 97 U. S. 628, 24 L. Ed. 1086 ; Hammon on Evidence, 252 ; Stephen on Evidence, 149 ; 1 Elliott on Evidence, § 113 ; Watson v. England,
In considering the motion for a directed verdict, the vital question is the sufficiency of the testimony to establish the death of the insured, based upon the presumption that it had occurred because of his absence without tidings. Subject to any particular rule applicable to this question of fact, it was proper to submit it to the jury for their determination, if there was a substantial conflict in material testimony bearing on that question; or if it was of such a character, taken as a whole, that its determination depended upon inferences to be drawn from a variety of facts and circumstances, in the consideration of which there was room for substantial difference of opinion between intelligent and upright men. We think the testimony establishes that Hoick left his home without intending to return; that he intended to abandon his wife; that his purpose in leaving was to seek a place where she could not find him; that she believed he had deserted her, having secured a divorce upon that ground, and that, in the circumstances, it is not strange his sisters or brother did not hear from him, and, therefore, his absence and silence can be fairly and reasonably accounted for so far .as these parties, and others of whom inquiries were made, are concerned without assuming his death. If these were the only circumstances to consider, and the only testimony relied upon to establish the presumption of death, we should rule on the record now before us, that it is insufficient. The principle upon which the presumption of death arises from absence and silence is that the absentee, if ‘living, would
The position of counsel for defendant in, error, with reference to the presumption of death, as stated in their brief, is as follows: “That proof of seven years absence from the last known place of residence of the absentee, with
Counsel for plaintiff cite several authorities in support of their propositions. Each case must necessarily depend upon its own facts, and the law as therein declared is limited accordingly. Many of the authorities cited do state that absence of a person from his usual abode for seven years without being heard from, rebuts the presumption of the duration of life, but in these cases there were no facts from which it could be said that absence and silence could be accounted for without assuming his death, so that the law as stated was correct when applied to the facts of the case. In other cases the declaration was made in construing a statute on the subject, or they hold, as in Policeman’s Benevolent Association v. Ryce, 218 Ill. 1, that the unexplained absence of a person from his usual place of abode for seven continuous years, and from whom no intelligence has been received within that time, raises a presumption of death, where no sufficient facts or circumstances are proven to overcome the presumption, which is, as we have already
It is also suggested, in the briefs of counsel for defendant, that the inquiries and publications which were made to locate Hoick were not sufficiently wide spread or exhaustive. We shall not pass on this subject as the judgment must be reversed for other reasons which we will notice later. Generally speaking, this is a question for the jury, and what would be sufficient in the way of efforts to locate the missing person, should be measured by the circumstances of each particular case. Subject to this rule, the law is that the search and inquiry must be diligent, and this means that degree of diligence which the definition of the word implies.
Counsel for defendant contend that the testimony, the purpose of which was to show that within seven years next preceding the formal demand for the payment of the policy, Hoick had been seen or heard from, required the trial court to sustain the motion for a directed verdict. The most that can be claimed for this evidence is, that it was for the jury to consider, and to'give it such weight as in their judgment it was entitled. The testimony that Hoick was seen in Kan
Errors are assigned by counsel for the company on the rulings of the trial court in admitting evidence mentioned in their brief under specification III. In disposing of the questions thus raised, we think it sufficient to say that none of this evidence was material to a single issue between the parties, and should have been excluded.
On behalf of defendant mortuary tables were offered arid refused. Section 2490, Revised Statutes 1908, provides:
“That in all civil actions, special proceedings or other modes of litigation in courts of justice, or before referees, or other persons having power and authority to receive evidence, whenever it shall be necessary to establish the expectancy of continued life of any person from any period of such person’s life, whether he be living at the time or not, the table set out in section 2 hereof shall be received as evidence, together with other evidence as to health, constitution, habits and occupation of such person of such expectancy.”
Then follows the table from which it appears that the expectancy of the insured at the time of his disappearance from Denver was twenty-seven years and a fraction. The purpose of the section above quoted is to make the mortuary table, to which it refers, admissible in evidence in a case when the expectancy of life is material to any question involved. In considering the presumption of death, 'based upon absence without being heard from, it is always material to consider age, habits, and health of the absentee, foi the reason that they bear on the probable duration of hi. life. For the same reason the expectancy of continued lif in such cases is proper to consider, “together with other evi dence, as to the health, constitution, habits and occupatio
The court instructed the jury to the effect; that the law presumes one who has left his home and remained away, is dead at the end of seven years after last heard from. But this presumption, however, does not arise from the mere fact of absence and failure to communicate with his family, as in addition, there must be proof of diligent efforts made to find the absent party, and it must be shown that after such efforts, it cannot still be learned that the absentee was alive within the seven year period. The instruction then continued to the effect that the presumption of death, when it arises, is not a conclusive one, but may be rebutted by the evidence in the case, and that it was for the jury to say whether the facts introduced in evidence were such as to cause the presumption of death to arise, and even if they find that the facts in the case are such as to raise the presumption of death, then it is for them to determine the weight that shall be given such presumption, and to determine whether or not, from all the evidence in the case, the insured was living or dead on the date plaintiff demanded payment of the policy, and concluded: “If the evidence shows by the greater weight or preponderance that he was dead, at the time, your verdict should be for the plaintiff.” On behalf of the defendant company the following instruction was requested and refused: “If you believe from the evidence in this case that the absence of James Hoick from his family and home in Central City and from Denver, and the fact that he has not been heard from by his relatives and by the plaintiff, since Christmas time 1902, can be ex
Without approving or disapproving the instruction given, it failed to clearly advise the jury and distinctly call their attention to the proposition that if the circumstances of the case were such as to account for the absence of the insured without tidings, without assuming his death, the presumption of death would not attach. That was the vital question, and the law as laid down in one or the other of the instructions requested should have been given, so that the jury would have been required to consider any testimony which would account for the absence and silence of the insured upon any reasonable hypothesis consistent with the evidence, other than that he was dead.
It is contended by counsel for plaintiff that other instructions given cover this point. The court did instruct to the effect that if from all the evidence, the facts and circumstances left the question evenly balanced as to whether or not Hoick was dead, their verdict should be for the defendant. The jury were also instructed that the mere fact that Hoick was absent for seven years prior to the commencement of the action was not alone sufficient to give rise to the presumption of his death prior to that date. This instruction concluded; “and if you believe from the evidence
Other instructions given by the court were objected to, and errors assigned thereon, which it is not necessary to consider in detail. The rules of law applicable to the case at bar are simple, and on retrial there should be no difficulty in so framing instructions as to properly submit the case to a jury.
At the oral argument it was suggested that the common-law rule under which death is presumed after seven years’ absence without tidings, is not in force in this state. This question was not raised at the trial, and nothing is said in the briefs on that subject, and as no authorities are
The judgment of the District Court is reversed, and the cause remanded for a new trial.
Judgment reversed and cause remanded.
Rehearing
On Petition for Rehearing.
(en banc).
In the opinion we said that the evidence referred to in specification 3 of the brief of counsel for the company should not have been admitted. We now rule that the article published in The Weekly Register-Call of date October 15, 1909, as limited by the trial court was admissible, and also rule that plaintiff’s exhibit “J J” was properly admitted. Except as thus modified the opinion will stand. The judgment of this court as therein announced is adhered to, and the judgment of the District Court reversed.
Opinion modified.