Ballinger v. Connecticut Mut. Life Ins. Co.

• Decision Date: 31 March 1934
• Citation: 69 S.W.2d 1090,167 Tenn. 367
• Parties: BALLINGER v. CONNECTICUT MUT. LIFE INS. CO.
• Court: Tennessee Supreme Court

69 S.W.2d 1090

167 Tenn. 367

BALLINGER v. CONNECTICUT MUT. LIFE INS. CO.

Supreme Court of Tennessee.

March 31, 1934

Appeal from Chancery Court, Davidson County; R. B. C. Howell, Judge.

Action by Mary E. Ballinger against the Connecticut Mutual Life Insurance Company. From a decree dismissing the bill complainant appeals.

Reversed and rendered.

C. H Rutherford and C. H. Rutherford, Jr., both of Nashville, for appellant.

Walter Stokes, of Nashville, for appellee.

SWIGGART Justice.

This is an action to recover the value of a contract of life insurance, issued by defendant in 1922 to Luther Ballinger complainant's husband. Hearing the case on stipulated facts, the chancellor decreed that complainant had not established her right to recovery, and dismissed the bill. Complainant has appealed.

The bill avers that the insured met his death on or shortly after November 20, 1925, the date of his disappearance, and relies upon the common-law presumption of death after seven years' unexplained absence to establish the fact of his death; the suit having been begun more than seven years after that date. Application of that presumption is not contested, in so far as the fact of death is concerned, but the defendant contends that the presumption is not available to establish the fact of death until at the end of the seven-year period, and that there is no sufficient evidence to prove the death of the insured while the contract of insurance was in force.

The life of the contract of insurance was extended, by application of its cash value when premium payments were discontinued until January 24, 1931, five years and two months after the disappearance of the insured.

The stipulated facts exclude any reasonable probability that the disappearance of the insured was voluntary on his part. His occupation was that of a barber, by which he "supported" his family. He was married and was the father of a girl 7 years of age, of whom he was "exceedingly fond." His domestic relations "were the very best." He frequently changed his place of residence, but "kept in constant touch and communication with his wife," writing her three or four times a week. During his periods of absence, complainant would remain with her father, in this state.

Ballinger left Nashville on October 19, 1925, for Chicago, to follow his trade in that city, "because business was better and he expected to earn more money there." He established himself there at an address at which he and his wife had formerly resided, and where he was known. He remained there for four weeks, during which time he wrote complainant three or four letters a week, the last, dated November 20, containing a money order for $35, for her living expenses, and his usual expressions of affection. His letters expressed his intention that complainant and his daughter "would join him in Chicago where they expected to live."

The letter of November 20, 1925, was the insured's last communication to his family. He disappeared, leaving his trunk and other personal belongings at his boarding house, and did not return to claim them. Diligent search by complainant, through the police departments of Chicago and other cities, and otherwise, has revealed no trace of him. He held a compensation certificate in the sum of $1,258, issued by the government of the United States to him as an ex-soldier, which was left in complainant's possession, because of which complainant extended her search for him "through the Federal Government," to no avail.

The stipulation of facts recites: "Chicago is a city where many lawless characters reside, where the underworld is prominent and powerful, and where there exist gunmen and gangsters."

At the date of his disappearance, Ballinger was about 30 years of age, and was afflicted with sinus trouble and gallstones, and his surgeon had ordered an operation for the latter ailment. There is no stipulation as to his personal habits, except in so far as it may be inferred from his domestic relations and his devotion to his family that he was not dissolute nor lacking in recognition of moral responsibility. The stipulation of facts "may be taken with all the admitted facts and the inferences legitimately to be drawn from them." Federal Trade Commission v. Pacific States, etc., Association, 273 U.S. 52, 47 S.Ct. 255, 257, 71 L.Ed. 535; quoted in Still v. Equitable Life Assurance Society, 165 Tenn. 224, 236, 54 S.W.2d 947, 951, 86 A. L. R. 382.

We conclude, supported by abundant authority, that the reasonable and legitimate inference of fact to be drawn from the stipulated facts is that the death of the insured, the fact of which is established by the presumption of law after seven years from the date he was last seen or heard from, occurred on or about the date of his disappearance, and before the expiration of his insurance contract five years later. The proof suggests no other reasonable cause for the insured's abandonment of his family and property and mode of life which he had found pleasant and satisfactory.

This reference to the legal presumption in aid of the inference of the time of death is not a resting of one inference upon another. "The one, no doubt, helps the other, but both rest upon the strong probabilities which arise from a consideration of all the various facts and circumstances involved, which method of reaching a determination, with its possible lack of refined reasoning, is permissible because of the necessities peculiar to this particular class of cases." Moschzisker, J., in Fanning v. Equitable Life Assurance Society, 264 Pa....