Arnall v. Union Central Life Ins. Co.

• Decision Date: 06 November 1943
• Docket Number: 35942.
• Citation: 157 Kan. 535,142 P.2d 838
• Parties: ARNALL v. UNION CENTRAL LIFE INS. CO.
• Court: Kansas Supreme Court

142 P.2d 838

157 Kan. 535

ARNALL v. UNION CENTRAL LIFE INS. CO.

No. 35942.

Supreme Court of Kansas

November 6, 1943

Rehearing Denied Dec. 21, 1943.

Syllabus by the Court.

In absence of a motion for new trial, there can be no re-examination of issues of fact.

The question whether findings of fact and conclusions of law support a judgment presents a "question of law" and is open to review notwithstanding absence of motion for new trial.

Where an appeal is taken in time from final judgment, the fact that some ruling of which appellant complains was made more than two months prior to time he perfected his appeal does not prevent a review of the ruling. Gen.St.Supp.1941, 60-3309 60-3314a.

Where ruling sought to be reviewed is one of law, it is open to review whenever a timely appeal is taken from a final judgment. Gen.St.Supp.1941, 60-3309, 60-3314a.

On defendant's appeal from judgment for plaintiff, plaintiff is entitled to benefit of evidence and inferences reasonably to be deduced therefrom, most favorable to her, and without regard to any contradiction in testimony.

Unexplained absence of person for period of seven years creates a presumption of his death.

Where presumption of death is created, party, asserting that death occurred before expiration of seven-year period of absence or on or before a particular date, has the burden of proof.

Where unexplained absence for seven years creates presumption of death, burden of proof as to date of death may be sustained by direct or circumstantial evidence.

Death of an absent person may be presumed in less than seven years from date of his disappearance, from circumstances other than those showing his exposure to danger which probably resulted in his death.

To justify presumption of death of absent person in less than seven years from date of his disappearance, there must be evidence of character, habits, domestic relations, and the like making abandonment of home and family improbable, and showing want of all those motives which might have influenced absent one to voluntarily leave, and circumstances must warrant reasonable conclusion of death within a shorter period or on probable or particular date.

In action on policy covering life of insured who had been absent for more than seven years, evidence was insufficient to sustain determination that death occurred during life of policy.

1. When an appeal is taken in time from a final judgment, the fact that some ruling of which appellant complains was made more than two months prior to the time he perfected his appeal does not prevent a review of the ruling.

2. Where the ruling sought to be reviewed is one of law, it is open to review whenever a timely appeal is taken from a final judgment.

3. Where a person disappears for a period of seven years and diligent inquiry does not disclose his whereabouts or what may have befallen him it may be presumed that he is dead.

4. The death of an absent person may be presumed in less than seven years from the date of his disappearance, from facts and circumstances other than those showing his exposure to danger or peril which probably resulted in his death.

5. Whether the death occurred before the expiration of the seven-year period of absence, or on or before a particular date, is a question of fact and the burden of proof is on him who asserts the death has so occurred, and may be sustained by direct or circumstantial evidence.

6. In such a case, there must be evidence of character, habits domestic relations and the like making abandonment of home and family improbable and showing a want of all those motives which might have influenced the absent one to voluntarily leave, and the facts and circumstances must be such as, when submitted to the test of reason and experience, warrant a reasonable conclusion of death within the shorter period, or on or before a particular date.

7. The evidence, in an action on an insurance policy on the life of the insured who had disappeared, examined, and held, that the plaintiff's evidence was not sufficient under the tests set forth in the preceding paragraphs to show his death during the life of the policy; that a trier of the fact could not, except by surmise and conjecture, determine the date of insured's death, and defendant's demurrer to plaintiff's evidence should have been sustained.

Appeal from District Court, Butler County; George J. Benson, Judge.

Action on a life policy by Rosa B. Arnall against the Union Central Life Insurance Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded with instructions.

W. A Kahrs, of Wichita (Austin M. Cowan, C. A. McCorkle, Robert H. Nelson, and Henry L. Butler, all of Wichita, on the brief), for appellant.

Allen B. Burch, of Wichita, (L. J. Bond, of El Dorado, and Arnold C. Todd, of Wichita, on the brief), for appellee.

THIELE Justice.

This was an action on a policy of life insurance and from an adverse judgment the defendant appeals.

The gist of the petition was that on August 22, 1933, the defendant company issued to Lloyd T. Arnall its policy of insurance on his life; that on May 29, 1934, Arnall left his home with the intention of going to his farm and he failed to return; that search was made to learn what had befallen him but no one known to plaintiff had been able to obtain any information as to where he might be found; that plaintiff was the designated beneficiary under the policy of insurance and shortly after the disappearance of Arnall she notified the local agent of the defendant company, and she was later advised the defendant would not pay the policy unless it was convinced the assured was dead. About September 10,1935, plaintiff offered to pay the premium which became due and payable October 23, 1934, but defendant advised her that it would not permit payment unless evidence was furnished of the insurability of the assured satisfactory to the defendant and defendant thereby waived further tender of premiums. Plaintiff further alleged that by reason of the foregoing facts and circumstances, assured died while the policy of insurance was in full force and she was entitled to recover its full face value, for which she prayed.

Defendant's answer, for our purposes, may be said to have consisted of certain admissions as to the issuance of the policy and the attempt in September, 1935, to pay the premium due October 23, 1934, and denials of the other matters pleaded, including a specific denial that Arnall was dead, and alleging that if Arnall was dead his death occurred after the policy of insurance lapsed for nonpayment of premium. Defendant further alleged the action was barred by the statute of limitations.

A jury was waived and trial was had by the court. Defendant's demurrer to plaintiff's evidence was overruled and defendant introduced its evidence. The parties having requested the trial court to make findings of fact and conclusions of law, the trial court later advised counsel for both parties of its proposed findings and conclusions, and the defendant filed its motion to strike certain findings and to include other findings and conclusions. Later and on March 26, 1943, the trial court caused its proposed findings and conclusions to be filed and denied the defendant's motion. Thereafter and on April 8, 1943, the trial court found that judgment should be entered pursuant to its findings and conclusions and rendered judgment accordingly. No motion for a new trial was filed but on April 16, 1943, defendant perfected its appeal to the supreme court from the rulings of March 26, 1943, and from the judgment of April 8, 1943. We note here that the findings of fact are based on all of the evidence and the conclusions of law are based on those findings. In view of questions hereafter considered it is not necessary that we set out the findings of fact nor the conclusions of law.

In its brief the appellant contends there was no evidence that Arnall died prior to October 23, 1934, which was the date of expiration of the policy of insurance on his life, or if there was such proof that the action was barred by the statute of limitations and the laches of plaintiff, and further no presumption of death arises from seven years absence unless it be shown that diligent inquiry through all sources and to all persons and places where the person disappearing is likely to be found has been made, and nothing learned therefrom and that there was no proof that such inquiry had been made.

Appellee challenges the right of the appellant to be heard on the questions as presented by it, and after directing our attention to the fact that appellant had filed no motion for a new trial, argues that the only question now reviewable is whether the judgment, as a matter of law, is justified under the findings of fact and conclusions of law made by the trial court. We do not think it necessary to review the many decisions to which our attention has been directed and having to do with the necessity of a motion for a new trial as a condition precedent to a full review on appeal. It has been repeatedly held that in the absence of a motion for a new trial there can be no reexamination of issues of fact. On a number of occasions it has been held that where the trial court had made findings of fact and conclusions of law thereon which either included or indicated a judgment, the same were not subject to review on appeal unless there had been a motion for a new trial, lacking which the only question left was the sufficiency of the findings and conclusions to support the judgment. See, inter alia, Brubaker v. Brubaker, 74 Kan. 220, 80 P. 455; Union Nat. Bank v. Fruits, 124 Kan. 440, 260 P. 638; Kalivoda v. Kalivoda, 148 Kan. 238, 80 P.2d 1050, and the cases cited...