Axen v. Missouri State Life Insurance Co.

• Decision Date: 05 April 1927
• Docket Number: 37830
• Citation: 213 N.W. 247,203 Iowa 555
• Parties: ANNA M. AXEN, Appellee, v. MISSOURI STATE LIFE INSURANCE COMPANY, Appellant
• Court: Iowa Supreme Court

213 N.W. 247

203 Iowa 555

ANNA M. AXEN, Appellee, v. MISSOURI STATE LIFE INSURANCE COMPANY, Appellant

No. 37830

Supreme Court of Iowa, Des Moines

April 5, 1927

Appeal from Johnson District Court.--RALPH OTTO, Judge.

Action by beneficiary to recover on a policy of insurance. The defense pleaded was that the assured was not dead at the time of the commencement of the action. Defendant's motion for a directed verdict was overruled, the jury returned a verdict for the plaintiff, and the defendant appeals.

Affirmed.

Dutcher & McClain, for appellant.

Byington & Rate, for appellee.

FAVILLE J. STEVENS, VERMILION, ALBERT, and MORLING, JJ., concur. EVANS, C. J., and DE GRAFF, J., dissent.

OPINION

FAVILLE, J.

I.

There is no conflict in the evidence in this case. On the 18th day of January, 1913, the Hartford Life Insurance Company issued its policy of insurance upon the life of John J. Axen. Said policy was payable to the appellee. Liability under this policy was assumed by the appellant shortly after the policy was issued. The insured was cashier of the Galt Savings Bank, of Galt, Iowa, at the time of the issuance of the policy, and continued so until September 17, 1917, when he disappeared. At that time, the insured was 32 years of age, had been married to the appellee for a period of seven years, and at said time had an infant daughter, about six years of age. The record shows that his domestic relations were pleasant, and that he was attached to his home and his wife and child. On the evening of September 17, 1917, while at the supper table, the insured told his wife that he was going to attend a meeting of the Knights Templar at Eagle Grove that evening. He left about seven o'clock, stating that he was going to drive his car to Clarion, and go from there to Eagle Grove. Instead of going in the direction of Eagle Grove, however, he drove his car to Iowa Falls, in a different direction, and registered the same in a garage there, under the name of J. J. Anderson. He did not attend the Knights Templar meeting at Eagle Grove. He was a man in apparent good health, big and strong, and had an expectancy of 33 years. The record shows that, at the time of his disappearance, the insured, as cashier of the bank, had misappropriated funds of the bank to an amount in excess of $ 30,000. None of his family or immediate relatives or friends have heard anything from him since the date of his disappearance. Immediately after the disappearance of the insured, the appellee telegraphed to the insured's father and brother, who came at once to Galt, and made a search for the insured in that vicinity, and telephoned to surrounding towns. The car was located at Iowa Falls, but nothing was discovered of the whereabouts of the insured. It appears that, on one occasion, relatives of the insured saw a picture of a naval officer in a Des Moines paper, which they thought resembled the insured, and their attorney forwarded this to Washington for information from the intelligence office, but received no information that the picture was that of the insured. Aside from the foregoing, there is practically no evidence of any attempt on the part of the appellee or other relatives of the insured to locate him. The insured was a member of certain fraternal orders, but it appears that no inquiries were made through the lodges of these orders, to find the insured. No advertisements were placed in any newspapers or elsewhere, with regard to locating the insured, and neither the appellee nor any members of the family of the insured incurred any expense in endeavoring to locate him.

The main proposition relied upon by the appellant is that the court should have sustained the appellant's motion for a directed verdict, and erred in submitting the case to the jury. The burden of proof in this case rested upon the appellee. There could be no recovery under the policy of insurance without proof of the death of the insured. The appellee attempted to prove death by the fact of the disappearance of the insured and his absence without communication with relatives and friends for a period of more than seven years. The appellee relies upon the presumption which the law raises in regard to the death of a person who has disappeared and not been heard of for a period of seven years. The common law raises this presumption of death in a proper case and on a proper showing. It is, however, a rebuttable presumption. The question has arisen in very many cases, and the rule is not always clearly stated as to when the presumption of death from disappearance will arise.

In 4 Wigmore on Evidence (1905 Ed.), Section 2531, it is said:

"But there is a genuine presumption, of long standing and of universal acceptance, to aid proof of death. It is generally said to arise from the fact of the person's continuous absence from home, for seven years, unheard of by the persons who would naturally have received news from the absentee. The phrasings differ, however; * * * the practice is not uniform in defining the precise point, or combination of facts, at which the burden of producing evidence shifts to the opponent."

There is no doubt of the existence of the general rule. The question in the instant case is whether, upon the record, such presumption did arise, and if so, whether it was so overcome or rebutted that the court should have directed a verdict, as a matter of law. We first considered this question in Tisdale v. Connecticut Mut. Life Ins. Co., 26 Iowa 170, where the action was on a policy of insurance. We therein recognized "the familiar rule of evidence that, when a person has not been heard of for many years, the presumption of duration of life ceases at the end of seven years * * *." In that case we held that the facts and circumstances might be such that death could be inferred, "whatever has been the duration of such absence," although less than seven years.

In State v. Henke, 58 Iowa 457, 12 N.W. 477, we said:

"A presumption of the death of a party does not arise until he has been absent, without intelligence concerning him, for the period of seven years."

In Seeds v. Grand Lodge of A. O. U. W., 93 Iowa 175, 61 N.W. 411, an action was brought upon a certificate of insurance. A motion for a directed verdict in behalf of the defendant was sustained, and affirmed upon appeal. In said case we said:

"The rule that death may be presumed from seven years' unexplained absence does not exclude evidence of other facts and circumstances which fairly tend to establish the probability of death within an earlier period."

This is the first time that the words "unexplained absence" in connection with the rule appeared in our decisions, and, as stated, it was used merely in connection with the rule that permits other facts and circumstances to establish the probability of death within the seven-year period.

In Sherod v. Ewell, 104 Iowa 253, 73 N.W. 493, we quoted with approval the general rule that the presumption of death of a party does not arise until he has been absent without intelligence concerning him for the period of seven years. No reference was made to "unexplained absence."

The same is true of Oziah v. Howard, 149 Iowa 199, 128 N.W. 364, and Carpenter v. Modern Woodmen, 160 Iowa 602, 142 N.W. 411.

In Magness v. Modern Woodmen, 146 Iowa 1, 123 N.W. 169, the rule is thus stated:

"The presumption of death from long absence is, of course, not conclusive; but, when it is shown to have continued for seven years or more, unaccompanied by circumstances which reasonably account for his disappearance on a theory not involving his death, it becomes sufficiently strong to cast the burden of rebutting it upon the party asserting the continuance of life. 3 Elliott's Evidence, Section 2010; 1 Greenleaf Evidence, Section 41; Cowan v. Lindsay, 30 Wis. 586."

In Richey v. Sovereign Camp of W. O. W., 184 Iowa 10, 168 N.W. 276, we said:

"A presumption of death does arise from the continued and unexplained absence of a person from his home or place of residence for seven years, where nothing has been heard from or concerning him during that time by those who, were he living, would naturally hear from him; and in such case the presumption is that the absentee died sometime during the first seven years of his unexplained absence."

In Haines v. Modern Woodmen, 189 Iowa 651, 178 N.W. 1010, we said:

"It is first argued for the appellant that the presumption of death from disappearance and continued absence of seven years does not arise unless it be further shown that the missing person has been diligently sought and inquired after without avail, and that there is in this case a failure of such proof. There is considerable variance in the views of the courts upon this feature of the rule. By some the idea expressed by appellant's counsel is approved, and the party relying upon the presumption must show a high degree of diligence in making inquiry and search. By others, it is distinctly held that proof of disappearance and continued unexplained absence for seven years, without being heard from by those with whom, in the natural course of things, the person would be likely to communicate, is all that is necessary, and that the presumption is not rebutted or overcome by a failure to show specific acts of search or inquiry. Miller v. Sovereign Camp W. O. W., 140 Wis. 505 (122 N.W. 1126); Page v. Modern Woodmen, 162 Wis. 259 (156 N.W. 137). In none of our cases have we gone to either extreme. We have said that: 'When the absence is shown to have continued for seven years or more, unaccompanied by circumstances which reasonably account for his disappearance on a theory not involving his death, it becomes sufficiently strong to cast the burden of rebutting it upon the party...