Parker v. N.Y. Life Ins. Co.

107 So. 198 | Miss. | 1926

^* Corpus Juris-Cyc. References: Death, 17 C.J., pp. 1168, n. 32; 1173, n. 76, 86; Presumption of death from absence, see note in L.R.A. 1915B, 729; 8 R.C.L., p. 713; 4 R.C.L. Supp., p. 570. This is an appeal from a judgment denying the appellant a recovery on an insurance policy on the life of her son, Robert M. Parker, in which she is the beneficiary.

The death of Robert M. Parker was not proven, but he disappeared more than seven years before the suit was brought, and has not since been heard of. To rebut the presumption of Parker's death arising from his unexplained absence from the state, the appellee introduced in evidence, over the appellant's objection, the fact that Parker, just prior to his disappearance, was placed under bond to await the action of the grand jury on a criminal charge; that he was indicted therefor just about the time of his disappearance, forfeited his bond, and is now apparently a fugitive from justice. The court charged the jury for the appellee that if they believed from the evidence that Parker had absented or concealed himself "because of his being a fugitive from justice, and in his efforts to escape trial for an offense charged against him in the courts, then it is the sworn duty of the jury to return a verdict for the defendant."

No request was made by the appellant for a directed verdict, and among the assignments of error are the granting of the instruction hereinbefore referred to, and that "the verdict of the jury was contrary to the law and the evidence."

Section 1914, Code of 1906 (Hemingway's Code, section 1574), provides that:

"Any person who shall remain beyond the sea, or absent himself from this state, or conceal himself in this state, for seven years successively without being heard of, 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; but any property or estate recovered in any such case shall be restored to the person evicted or deprived thereof, if, in a subsequent action, it shall be proved that the person so presumed to be dead is living."

The presumption that a person who absents himself from this state, etc., for seven years successively without being heard of is dead, can be rebutted under the express provision of the statute only by proof "that he was alive within the time." Assuming, for the purpose of the argument, that the continued existence of a person who has absented or concealed himself for more than seven successive years can be proven by circumstantial evidence, the mere fact that he was a fugitive from justice is insufficient for that purpose. He may have fled from justice, butnon constat he may have died in the meantime. Whatever the rule in this connection may have been at common law, and as to which we express no opinion, the statute must control here. The case ofNew York Life Insurance Co. v. Brame, 73 So. 806, 112 Miss. 829, L.R.A. 1918B, 86, relied on by counsel for appellee, is not in point. In that case there was no contention that the presumption of death had been overthrown, and the court's discussion of the presumption created by the statute was in connection with its holding "that the burden of proof is upon the party who wishes to prove the death at any particular time within the seven years."

The instruction complained of should not have been given, and the verdict should have been for the appellant.

Reversed and remanded.