149 N.E. 718 | Ind. | 1925
Appellee recovered a judgment for $4,860 in an action on a policy of life insurance issued by appellant on the life of Wilbert G. Oldham. The errors assigned are overruling the demurrer to the complaint, overruling the motion for a new trial, and stating a conclusion of law to the effect that upon the facts *52 found appellee was entitled to recover said sum of $4,860 as against appellant. Under each of these assignments, the question is presented whether or not the unexplained absence for five years of a person whose life was insured is enough, in itself, to establish the fact of his death on the date of his disappearance. The assignment that the court erred in overruling the demurrer presents the further question whether or not an averment that on a certain date the insured "absented himself from his usual place of residence and went to parts unknown, and has absented himself from said place of residence ever since said time, and for a space of more than five years, and that he has not been heard of or seen by any one since said time," and that "up to the time the said [insured person] absented himself from his last and usual place of residence, as above set out, all premiums accrued on said policy had been duly paid," amounted to a sufficient allegation that he died on the date named, and that all accrued premiums up to the time of his death had been paid.
The complaint was filed January 12, 1921. The plaintiff (appellee), suing as administratrix of the estate of Wilbert G. Oldham, alleged in her complaint that defendant (appellant) was a corporation organized under the laws of the State of Indiana; that on April 22, 1911, in consideration of the payment, each quarter thereafter, of a premium of $28.40, it executed a policy of insurance on the life of said Wilbert G. Oldham, a copy of which is set out as an exhibit; that on August 4, 1914, his usual place of residence was in the city of Mitchell, Lawrence county, State of Indiana; that on said date he went away to parts unknown and thereafter has ever since continuously absented himself from his said place of residence for more than five years, and has not been heard of or seen by any one since then; that he left no will, and thereafter letters *53 of administration on his estate were duly issued to plaintiff by the Lawrence Circuit Court, under which she qualified and was still acting; that up to the time he absented himself, as above set out, all premiums on said policy had been duly paid; that after the policy was issued, payable to Mrs. Oldham, the beneficiary was duly changed to his administrator and assigns; that, after his disappearance, plaintiff "demanded and received the quarterly premiums paid on said policy until the sum of $142.00 was paid," (but by whom paid is not stated); that the insured and plaintiff "each duly performed the conditions of said policy on their part to be performed, and plaintiff, more than ninety days before the beginning of this suit, notified the defendant" that the insured had so absented himself and had not been seen or heard from since August 4, 1914. The policy, made part of the complaint as an exhibit, recited that upon the conditions therein stated, and for a premium of $28.40, payable on or before January 22, April 22, July 22, and October 22, in every year during the continuance of the policy, defendant insured the life of Walter G. Oldham for "$5,000.00, payable immediately upon receipt of due proof of the death of the insured during the continuance of the policy." It also provided for a change of beneficiary.
At common law, it is presumed that one who has been absent for less than seven years is still alive. Cooper v. Cooper
(1882),
Appellee cites and relies upon ch. 4, Acts 1859 p. 33, as since amended, and ch. 137, Acts 1883 p. 209, supplemental thereto, being §§ 3078-3083 Burns 1926, §§ 2747-2752 Burns 1914, as establishing not only a presumption from his absence for five years that the insured is dead, but also as creating a conclusive *54 presumption that he died on the day he disappeared, when the premiums were paid up to date. While appellant contends that these statutes have no relation to the contract rights of parties growing out of the death of one whose life is insured, but relate only to the management, care and disposal of the estates of absentees.
The title of the act of 1859 was, "An Act to provide for the management and disposal of the estates of persons who have absented themselves from their usual places of residence, and gone to parts unknown."
It originally applied only to the estates of persons who had been absent for ten years. But, as amended by ch. 52, Acts 1861 p. 116, § 2232 R.S. 1881, the first section was made to provide that if a resident of the state shall have gone "to parts unknown" for five years, leaving property, "without having made any sufficient provision for the management of the same," and (a) the property is suffering waste for want of proper care, or (b) the family of the absentees are in need of its use and proceeds for their support or education, or (c) it becomes necessary to sell any of the property to pay debts of the absentee, and these facts are made to appear to the court having probate jurisdiction, after notice by publication, "it shall be presumed and taken by such court that such person is dead," and the court may appoint an administrator for his estate. This section was afterward amended so as to apply not only to property owned by the absentee at the time of his disappearance, but also to property "which may be subsequently acquired by him, either by inheritance or otherwise," and as so amended is still in force. § 3078 Burns 1926, § 2747 Burns 1914, Acts 1911 p. 676.
The second section (§ 3080, supra) provides that upon the return of such absentee, the administrator shall retain his powers and rights and continue to perform his duties as such until discharged by the court. The third *55 (§ 3081, supra) gives "the wife of such departed person" all the rights of a feme sole after the appointment of the administrator, not only until her husband shall return, but also until his "resumption of his rights as such husband." And the fifth (§ 3083 Burns 1926, Acts 1913 p. 859) provides that all acts done in good faith by the administrator of such absentee's estate and the guardian of his children shall be as binding on him as if they were his own acts, "should he return." This being the law, the legislature, in 1883, passed an act (neither approved nor vetoed by the Governor), the title of which recited that it was "supplemental" to said original and amendatory acts "so as to fix the time when the presumption of death takes effect, and how proof of death upon policies of insurance on the lives of such absentees may be made." The first section of this supplemental act (§ 3079, supra) reads as follows: "The presumption of death recited in the first section of the said act above entitled, as amended, in the case of any person who, since the passage of said act and the amendment above recited, has absented himself from his usual place of residence and gone to parts unknown, or who has not been heard of for the period of five years, shall relate back to the time of the first disappearance of such absentee, and it shall be presumed and taken by all courts that such absentee was dead on the first day of his disappearance: Provided, however, That this section shall not apply to any suit now pending; neither shall a party holding or entitled to the proceeds of any policy of insurance upon the life of such absentee, where the five years have expired prior to the passage and taking effect of this act, and whose duty it is to make proof of the death of such absentee, be required, when such proof is not prohibited by the contract with the insurer, to make other proof of death than the fact of the disappearance of the insured *56 for five years continuously." These statutes did not purport to enact that by an absence for five years the owner of property shall lose his title thereto, or that his property, either real or personal, shall thereby become subject to distribution among his heirs. But the first section of the original act, as it now reads, after the amendment in 1911, expressly recognizes the power of such absentee to acquire property, "by inheritance or otherwise," which it is obvious a dead man could not do. And every section of that act, above set out, contains some provision as to what shall be done in case of his return. While the last section, as amended in 1913, now provides, in express terms, that only after three years from the date of issuing letters of administration, being not less than eight years after the disappearance of the absentee, shall his property be finally distributed to his heirs without taking a bond for its return in case the owner shall come back to claim it. § 3083 Burns 1926, § 2752 Burns 1914, ch. 326, Acts 1913 p. 859.
These statutes were given a practical application in a case where the owner of a farm disappeared for five years, after which one of his children purchased from another of them what was believed to be the latter's share of the farm as heir of their father, taking a quit-claim deed for the farm and giving a note for the agreed price, and a few months later the owner came back and took possession of the farm. The court held that the note was executed under such a mistake of fact that the maker might have it canceled upon returning what he had received for it.Fleetwood v. Brown (1886),
And again, in the case of Metropolitan Life Ins. Co. v.Lyons (1912),
A sufficient answer to this contention is that the title of the original act was "an act to provide for the management and disposal of the estates of persons who have absented 2-4. themselves from their usual places of residence, and gone to parts unknown" (Acts 1859 p. 33, supra), and that the subject of changing the general rule of evidence as to when a presumption of death shall arise from unexplained absence in actions on contracts, or changing the particular rule in actions on insurance policies, is not expressed in such title, nor is it a matter properly connected therewith. Art. 4, § 19, Constitution, § 122 Burns 1926. And so far (if at all) as the words "so as to fix the time when the presumption of death takes effect, and how proof of death upon policies of insurance on the lives of such absentees may be made," contained in the title of the supplemental act of 1883, p. 209, supra, might or should be interpreted to embrace another subject, and so far as anything in the body of the act might be understood to refer to that subject, both the title and the act would thereby be made double, and would offend against the constitutional provision that "Every act shall embrace but one subject and matters properly connected therewith." Art. 4, § 19, Constitution, § 122 Burns 1926,Jackson, Sec., v. State, ex rel. (1924),
We conclude that the presumption of death arising from an absence of five years under the circumstances outlined in the statute is only for purposes which have relation to the 5. management and disposal of the estate of the absentee, and does not control *61 in determining the rights of parties under contracts of insurance on his life. And that, even for these purposes, it is a rebuttable presumption, the statute expressly saving the rights of the absentee if found to be alive within three years after an administrator is appointed under its provisions.
But, in any event, if the complaint had alleged that the insured had been absent for the full period from which a presumption that he was dead would arise at common law 6, 7. or under a valid statute to that effect, the complaint on a policy of life insurance must tender an issue as to his death, and not merely as to his absence. The policy sued on insured the life of Wilbert G. Oldham and not his continued presence at his usual place of residence. And it contained a promise to pay $5,000 upon his death, and not in case of his continued absence. The statute relied on by appellee, as above recited, does not make the presumption of death absolute, but recognizes and makes provision for the contingency of a return of the absentee, in almost every section. It might be true, as alleged, that, at the time the complaint was filed, the insured had been absent continuously for many years, during which he was not heard from, and yet he might be alive and might appear on the day of the trial, to testify as a witness. Plaintiff's right to recover depended on the ultimate fact that the insured was dead. And by whatever means that fact was to be established, whether direct testimony or proof of circumstances or presumptions, the complaint, either directly or indirectly, must allege the ultimate fact relied on, or it will not withstand a demurrer. A complaint which alleges only rebuttable presumptions or evidence tending to establish a fact on which the right of recovery depends, instead of alleging the fact itself, is not sufficient to *62 withstand a demurrer, if all that is alleged might be true, just as stated, notwithstanding the non-existence of the fact or facts on which plaintiff's right to recover depends.
The complaint being insufficient, we do not find it necessary to consider the sufficiency of the special finding or the evidence.
The judgment is reversed, with directions to sustain appellant's demurrer to the complaint.