112 Va. 462 | Va. | 1911
1. EVIDENCE — Presumption of Death. — The presumption of death from seven years' absence from the State only arises at the end of the seven years. There is no presumption of death at any time within the seven years, or that a party is alive at any particular time within that period, and the burden is on the party asserting such a claim to prove it by evidence satisfactory to the jury.
2. LIFE INSURANCE — Proof of Loss — Province ofCourt. — Whether or not satisfactory proofs of a death loss under a life insurance policy have been furnished is, in the first instance, a question to be passed upon by the court as constituting a condition precedent to the right to bring suit.
3. LIFE INSURANCE — What Is "Satisfactory Proof ofLoss." — There is no precise standard for determining what constitutes "satisfactory proof of loss" under a life insurance policy. But if the preliminary proofs are such as, when introduced upon the trial of the case, standing alone and without further proof, would be sufficient to support a verdict of a jury in favor of the plaintiff, they should be held to be satisfactory, as a condition precedent to the institution of an action. In the case at bar, the evidence does not satisfactorily prove the death of the assured.
4. LIFE INSURANCE — Presumption of Death — Computation ofTime. — Evidence tending to raise the presumption of the death of an assured who has disappeared and not been heard from must be considered as of the time the proof of loss was rendered, and certainly not later than the time of institution of suit. The period elapsing between the institution of the suit and its termination should not be taken into consideration. Furthermore, to warrant a recovery on a life insurance policy, it is incumbent on the plaintiff to show that the death of the assured occurred during the life of the policy. Three policies of insurance, amounting to $17,500, were taken out by Charles H. Hudspeth in the Equitable Life Assurance Society of the United States. At the institution of this suit, the Security Bank of Richmond, Virginia, the plaintiff, was the undisputed beneficiary of the three policies, and brought its action to the first Monday in August, 1903, averring that Hudspeth, upon whose life the . . policies were issued, was dead, and asking judgment for the amount of the insurance.
These policies contain a provision which is as follows: "The Equitable Life Assurance Society of the United States hereby assures the life of Charles H. Hudspeth, of Midlothian, Va., hereinafter known as the assured, and on receipt of satisfactory proofs of the death of the assured, providing this policy is then in force, agrees to pay" the amount for which the policy is written.
The defendant pleaded non-assumpsit, and for grounds of defense said: (1) That the policies of insurance sued on lapsed for non-payment of premiums on April 14, 1903; (2) that no proof of the death of the assured has been furnished to the defendant, as required by said policies of *466 insurance, and that no presumption of his death arose until the expiration of seven years from the time he was last seen alive, which time is stated by the plaintiff to have been about 2 p. m. on Monday, March 10, 1902; (3) that the burden of proof is on the plaintiff to show that the assured died prior to the time when the policies lapsed, on the 14th of April, 1903.
There was a verdict and judgment for the defendant, to which the plaintiff applied for and obtained a writ of error.
Passing over the preliminary correspondence between the attorneys for the Security Bank and the Equitable Life Society, we come to the proofs of death furnished to the society before the institution of the suit, in compliance with the stipulation in the policies above set forth.
The eighth clause of claimant's statement is as follows: "State all facts regarding cause and circumstances of death." Ans. "See paper hereto attached, marked `A'." The paper here referred to is as follows:
"He disappeared from Richmond about March 6, 1902, without warning to family and friends, was traced to Washington, D. C., by detectives who learned that he had been drinking very heavily. Since that his family have not had a line from him. We sent full description to all police bureaus and detective agencies offering reward.
"It is said he was very ambitious to make money, was very despondent and exceedingly dissipated. Had lost all of his means, which we think caused him to take his own life. Last time seen as far as we know was at Johnson Hotel, Washington, D. C., about 2 p. m. on Monday, March 10, 1902. After his departure, his room was searched and in it were found a number of empty whiskey bottles carried there by him. It was also proven that he drank very heavily at bar of said hotel.
"His family also have made every effort to locate him, but without success. *467
"Attached to and made a part of the proof of death of Charles H. Hudspeth by the Security Bank of Richmond.
"JACKSON GUY, Cashier."
The paper marked "A" was dated April 22, 1903, and on April 27th the general agent of the Assurance Society informed Mr. Guy that the proofs submitted were not satisfactory to his company. It appears that the policies sued on were kept in force until April 14, 1903, by the payment of premiums, and no further payment having been made they lapsed upon that day.
After the evidence had been submitted to the jury, the court refused to give certain instructions asked for by the plaintiff, but instructed the jury, "That whilst the law presumes that a person who has left home and has not been heard from for seven years has died, yet the presumption of death in such cases only arises at the end of the. seven years; that is to say, that the presumption of law of death does not arise until the expiration of seven years; but there is no presumption of law as to the particular time of death within the seven years, nor does the law raise any presumption that the party who has so left the State has continued to live or that he is living at any particular time during the seven years; but the burden is on the party asserting such a claim to prove it by testimony satisfactory to the jury. And in this case the jury are instructed that the burden of proof is upon the plaintiff to show to your satisfaction that Charles H. Hudspeth died before the 14th day of April, 1903; and unless you are so satisfied from the evidence of the proof of this fact you must find for the defendant."
This instruction is in accordance with the decision of this court in Evans v. Stewart,
The second instruction given was: "That if the policies, sued on in this case had lapsed by reason of non-payment of premiums before the bringing of this suit, or that suit *468 was brought before satisfactory proofs of the death of the assured had been furnished to the defendant, then the jury must find for the defendant."
And the third instruction: "That the statements set forth in the paper signed Jackson Guy, Cashier, and marked `A' with the claimant's statement are not `such satisfactory proofs of the death of the assured' as is contemplated by the policies sued on in this court; and unless the jury believe from the evidence that further proof of the death of the assured was furnished to the defendant before this suit was brought, then they must find for the defendant."
The case turns upon whether or not the second and third instructions correctly propound the law. The case was argued ably and fully, orally and upon the briefs. A great number of cases were cited — a greater number than can be considered and criticised within the limits of an opinion, and we shall, therefore, refer specifically only to those which seem to bear most directly upon the points at issue.
One of the principal controversies raised in the case is whether or not the preliminary proofs of death are to be passed upon by the court as constituting a condition precedent to the right to bring the suit, or whether it is for the jury to determine whether or not they comply with the provision of the policies, which required the plaintiff to furnish satisfactory proofs of death of the assured.
We are of opinion that the weight of authority imposes the duty upon the court to determine, in the first instance, whether or not the proofs are satisfactory.
In 25 Cyc., at p. 947, note 27, in enumerating questions of law for the court, there is included, "The legal effect and sufficiency of the proofs of loss furnished in compliance with the requirements of the policy." Citing a number of cases.
In Citizens' Fire Ins. Co. v. Doll,
In Mutual Life Ins. Co. v. Stibbe,
In Policemen's Association v. Ryce,
In Gauche v. London, c., Ins. Co., (C. C.) 10 Fed. 347, the court said, that the sufficiency of preliminary proofs, there being no question of waiver involved, is a question of law for the court and not a question of fact for the jury.
The case of Charter Oak Life Ins. Co. v. Rodel,
Noyes v. Commercial Travelers Accident Asso.,
In Buffalo Loan Trust Co. v. Knights Templar,c.,
In Travelers Ins. Co. v. Sheppard,
From an examination of the authorities we have reached the conclusion that it was for the court to pass upon the sufficiency of the preliminary proofs.
The question which next arises is, did it correctly discharge that duty?
Every case seems to stand upon its own particular facts, and no precise standard, as far as we have been able to discover, is established for the guidance of courts in determining what is satisfactory proof of loss. As was said in Buffalo Loan,
It will be observed, in the case under consideration, that when the claimant was called upon to state all facts regarding the cause and circumstances of death, the reply was a reference to an attached paper marked "A," which has already been copied into this opinion.
The instruction given by the court told the jury that statement "A" did not contain satisfactory proofs of the death of the assured, and that the jury should find for the defendant, unless they believed from the evidence that further proof of the death of the assured was furnished to the defendant before this suit was brought. The jury by their verdict, therefore, found that there was no such proof furnished to the defendant; and in the petition for a writ *473 of error it is said that the proof offered upon the trial was but "an elaboration of the statements contained in the said proof of death." The whole case made by the plaintiff is, therefore, to be found in statement "A."
This brings us to inquire as to the probative value of the facts set forth in statement "A"; and here it must be borne in mind that the paper was prepared on the 22nd of April, 1903, and that Hudspeth was last seen on March 10, 1902; that the suit was brought to August rules, 1903; and that the judgment complained of was rendered on the 10th of March, 1910. The evidence must, therefore, be considered as of the time the proof of loss was rendered, and certainly not later than the time of institution of the suit. In some of the cases it seems that the period elapsing between the institution of the suit and its determination was taken into consideration; but in that view we cannot concur.
But even if the period of absence down to the trial were to be considered in aid of statement "A," it would not avail the plaintiff in error, for not only must it show that the assured is dead, which at the expiration of seven years would be presumed, and as to which the presumption would be strengthened as the period from his disappearance increased, but it is also necessary, in order to maintain an action in this case, to show that death occurred during the life of the policy — that is to say, prior to April 14, 1903. In other words, it would aid the presumption of death, but would be of no value as tending to fix the time of death. See Evans v.Stewart, supra.
In 2 Wharton's Evidence (3rd ed.), sec. 1277, the law is thus stated: "It has been incidentally observed that, aside from the general presumption of death arising from unexplained absence abroad for seven years, certain facts have been noticed by the courts as affording grounds on which inferences of death, more or less strong, may rest. Among these facts may be noticed: Presence on board a ship known *474 to have been lost at sea, the inference of death increasing with the length of time elapsing since the shipwreck; exposure to peculiar perils, to which death will be imputed if the party has not been subsequently heard from; ignorance, as to such person, after due inquiry, of all persons likely to know of him if he were alive; cessation of writing of letters, and of communications with relatives, in which case the inference rises or falls with the domestic attachments of the party. Thus, death may be inferred by a jury from the mere fact that a party who is domestic, attentive to his duties, and with a home to which he is attached, suddenly, finally, and without explanation, disappears. On the other hand, it is admissible to explain such disappearance by putting in evidence pecuniary embarrassments."
In Ryan v. Tudor,
Tisdale v. Connecticut Mutual Life Ins. Co.,
In Seeds, Executor, v. Grand Lodge of Iowa, c.,
Contrast the proof furnished in statement "A" with the facts inTisdale's case, supra, and one cannot but be impressed with the fact that the two cases differ in almost every circumstance. We have given statement "A" our most careful consideration, and we are of opinion, first (as before stated), that it was the province of the court to determine whether or not it furnished sufficient proof of death; second, that the court correctly held that it did not furnish sufficient proof of death; and, third, that if the court had submitted that question to the jury and they had found for the plaintiff upon the faith of the facts stated in statement "A," which we have seen contained all the facts of probative value introduced before the jury, it would have been the duty of the court to have set aside the verdict; and, therefore, we are of opinion, from every point of view, that there is no error in the judgment of the lower court, which is affirmed.
Affirmed.
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