American Nat. Ins. Co. v. Dailey, 11506.

• Citation: 187 S.W.2d 716
• Decision Date: 18 April 1945
• Docket Number: No. 11506.,11506.
• Parties: AMERICAN NAT. INS. CO. v. DAILEY et al.
• Court: Court of Appeals of Texas

187 S.W.2d 716

AMERICAN NAT. INS. CO. v. DAILEY et al.

No. 11506.

Court of Civil Appeals of Texas. San Antonio.

April 18, 1945.

Rehearing Denied May 23, 1945.

Appeal from County Court at Law No. 1, Bexar County; McCollum Burnett, Judge.

Action by Martha Evans Dailey and others against American National Insurance Company on a life policy. From a judgment for plaintiffs, the defendant appeals.

Reversed and rendered.

Maxwell Burkett, of San Antonio, for appellant.

Harry B. Berry, of San Antonio, for appellees.

NORVELL, Justice.

This is an action upon an insurance policy. Judgment was rendered for the appellee, Martha Evans Dailey, upon a special issue jury verdict, and American National Insurance Company has appealed.

The jury found that the insured, Earl Evans, was dead on August 10, 1934, the date selected by the trial court as the time when the insurance policy sued upon became ineffective by reason of nonpayment of premiums. There is no evidence in the record from which the jury's finding could reasonably be inferred, and for that reason appellant's motion for judgment non obstante veredicto should have been granted. This holding makes it unnecessary to discuss a number of the contentions presented by the parties here.

This is a disappearance case. Appellee, the beneficiary under the policy and former wife of the insured, testified that on July 3, 1933, Earl Evans left his home in San Antonio, Texas, with the apparent intention of going to his usual place of work. Without informing his wife, Evans went to Los Angeles, California. On July 15th he mailed a postal card to his wife from that city. She received two further letters, the last one being dated July 21, 1933. Appellee has heard nothing further from her former husband. Inquiries of his whereabouts were made to no avail. Although appellant attacks the sufficiency and thoroughness of these inquiries, we think, for the purposes of this case, it may be considered that the fact of death was established in accordance with the legal presumption provided for by Article 5541, Vernon's Ann.Civ.Stats.

It is well settled in Texas that "the fact of death, after an absence of seven years successively by a person, is fixed by the statute when the fact of absence is established, * * * but the time of death * * * must be determined by the jury, or by the court in trying the case without the intervention of a jury. Sovereign Camp, W. O. W. v. Boden, 117 Tex. 229, 1 S.W. 2d 256, 258, 61 A.L.R. 682." American Nat. Ins. Co. v. Hicks, Tex.Com.App., 35 S.W.2d 128, 132, 75 A.L.R. 623.

In the Hicks case, above cited, it was held that when the fact of death was established in accordance with the statutory presumption, this fact could be considered along with the other facts of the case in determining the time of death, even though the evidence was insufficient to establish the fact of death independently of the statutory presumption.

From the opinion of the Court of Civil Appeals in the Hicks case, 19 S.W.2d 359, it appears that there was some evidence that Archie Hicks, the insured, was exposed to a specific peril immediately prior to his disappearance. There is no "specific peril" evidence in this case. The Texas courts do not, however, follow the strict rule that death prior to the expiration of the seven year period (when the presumption is relied upon to establish the fact of death) must be shown by evidence that the absentee was at a particular time in contact with a specific peril. Any fact or circumstance from which a reasonable inference may be drawn as to the time of death is proper for the jury's consideration. Aside from evidence of exposure to a specific peril, the usual character of evidence relied upon to establish the time of death in a disappearance case is that which tends to show that, in the light of normal and usual human behavior, there is no other reasonable hypothesis which explains the absence of the missing person other than that of his death at or about the time of his disappearance. The leading case relating to this particular type of evidence is that of Tisdale v. Connecticut Mutual Life Ins. Co., 26 Iowa 170, 96 Am.Dec. 136, which was followed and approved in Sovereign Camp W. O. W. v. Robinson, Tex.Civ.App., 187 S.W. 215.

In appraising the sufficiency of evidence, in law or in fact, which is relied upon to establish the time of death, the general rules applicable to the determination of the sufficiency of the evidence bearing upon any controverted fact issue are applicable. No jury verdict or finding will be allowed to stand which is based upon mere surmise or conjecture. Austin v. Neiman, Tex.Com.App., 14 S.W.2d 794. Evidence which at most raises only a surmise or suspicion of the existence of a fact is in legal contemplation no evidence at all. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.

While in certain cases difficulty may arise in establishing a line of demarcation between a "reasonable inference" and a conjecture, we think it fairly appears from the evidence of this case that the time of the death of Earl Evans can not be fixed or determined without resort to surmise and...