72 Wis. 170 | Wis. | 1888
About January 4, 1874, Joseph S. Whiteley started from his employer’s at Racine, on a trip as trav
The court, among other things, charged the jury, in effect, that such unexplained absence of Joseph S. Whiteley, without being heard of for more than seven years, raised a presumption that he was dead; but that it raised no presumption that he died at any particular time during the ' seven years, nor helped to fix the exact time of death within that seven years; that the plaintiff must prove by a preponderance of the evidence that he died before April 3,
Had the action been commenced and tried prior to the expiration of the seven years following such disappearance, a presumption of such continuance of life might properly have been indulged, for then it would have been incumbent upon the plaintiff to prove either by direct evidence or by facts and circumstances (1) that he was dead, and (2) that such death occurred prior to April 3, 1874, or, in other words, during the life of the policy. But by delaying the action and trial until after such expiration of the seven years, such proof of death was dispensed with by such presumption of the fact; and hence the only remaining fact to be established by the evidence was the time, or about the time, when such death occurred. In other words,
It appears from the record that all such facts and circumstances so proved transpired before April 3, 1874; and hence, if such facts and circumstances tended to fix the time of death at all, they tended to fix it prior to that date.. In other words, the record reveals no facts and circumstances as having transpired after that date tending to fix some subsequent time during the seven years as the probable period of his death. If the trial court was justified in saying that “ in this case . . . the presumption is that he was alive on the 3d day of April, 1874,” then it follows as a logical sequence that such presumption continued until the expiration of the last day of the seven years; or, in other words, that the death occurred at the end of the seven years. “ Such a rule,” says Denman, C. J., speaking for the court of King’s Bench, “ would, in the very great majority of cases, nay, in almost every case, cause the fact to be found against the truth, and, as the rule would be applicable to all cases in which the time of death became material, would in many be productive of much inconvenience and injustice.” Doe v. Nepean, 5 Barn. & Adol. 86. It is there said, in effect, that though such absence for seven years “is sufficient evidence to warrant a presumption of fact that the party was dead at the end of seven years, it certainly raises no inference as to the exact time of the death, and still less that such death took place at the end of seven years.” This was approved three years afterwards by the same chief justice, speaking for the court of Exchequer, in an elaborate opinion, from which we quote: “Now, when nothing is heard of a person for seven years, it is obviously a matter of complete uncertainty at what point of
These and several other English cases were reviewed in Re Phene's Trusts, L. R. 5 Ch. App. Cas. 139, where it was held that, “if a person has not been heard of for seven years there is a presumption of law that he is dead; but at what time within that period he died is not a matter of presumption but of evidence; and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential. There is no presumption of law in favor of the continuance of life, though an inference of fact may legitimately be drawn that a person alive and in health on a certain day was alive a short time afterwards.” To the same effect: In re Lewes' Trusts, L. R. 6 Ch. App. Cas. 356; Hickman v. Upsall, L. R. 20 Eq. Cas. 136, 13 Eng. (Moak), 672. The rules thus stated are well illustrated in a very recent English case (Rhodes v. Rhodes, L. R. 36 Ch. Div. 586), where one Alfred Rhodes emigrated to Australia in 1850. He was never heard of by any member of his family after 1873, when he was still unmarried and
The rules thus indicated are in harmony with some of the best-considered adjudications in this country. We cite a few, merely as illustrative of the reasoning in support of such rules: Davie v. Briggs, 97 U. S. 628; State ex rel. Spencer v. Moore, 11 Ired. Law, 160, 53 Am. Dec. 401; Spencer v. Roper, 13 Ired. Law, 333; Hancock v. American L. Ins. Co. 62 Mo. 26; Tisdale v. Connecticut Mut. L. Ins. Co. 26 Iowa, 170, 28 Iowa, 12; McCartee v. Camel, 1 Barb. Ch. 455; Ryan v. Tudor, 31 Kan. 366; Williams v. Williams, 63 Wis. 62. Thus, Mr. Justice Harlan, speaking for the supreme court of the United States, in the ease cited, quotes from a treatise on the law of evidence, what he states to be in harmony with the law of the English courts and the preponderance of authority in this country, this sentence: that, “although a person who has not been heard of for seven years is presumed to be dead, the law raises no presumption as to the time of his death; and, therefore, if any one has to establish the precise period during those seven years at which such.nerson died, he must do so by evidence, and can neither
Some of the cases speak of a presumption of life or death at some particular time prior to the expiration of such seven years; but this, it is believed, has generally been said in cases where the question arose prior to the termination of such period, or where the statement is made by way of characterizing the evidence tending to thus fix the particular time; simply meaning thereby that such particular t me may have been inferred or found by the jury from the facts and circumstances in evidence in the particular case. There are cases which seem to hold that such presumption of death from such mere unexplained absence fixes the time of death at the end of the seven years. Such cases, it is believed, usually treat such presumption as a rigid or conclusive presumption of law, as the trial court in one part of the charge here seems to have treated it; but most of the authorities seem to regard the presumption as a mere prima facie presumption of fact, which may be overcome by evidence. In civil actions, courts and juries a.re frequently called upon to determine facts from mere probabilities disclosed by the evidence; and yet, in such cases, there is a possibility of subsequently discovering the facts found to have been otherwise.
We must hold that it was error for the trial court to charge the jury, in effect, that in this case the presumption was that Joseph S. Whiteley continued to live until the expiration of the seven years, or that he was alive on April 3, 1874, and that such presumption would control until overthrown by competent proof and the fact established by evidence that he died at an earlier date. That was an entirely different thing than to say that the burden of fixing the time was on the plaintiff. In the on.e case the parties start in the trial with the two ends of the scale equally balanced; in the other case the one end is borne down by an oppres-
There are other errors complained of, but as they are not likely to be repeated it becomes unnecessary to consider them here.
By the Oourt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.