Behlmer v. Grand Lodge A.O.U.W
| Decision Date | 24 December 1909 |
| Docket Number | 16,286 - (94) |
| Parties | IDA BEHLMER v. GRAND LODGE A.O.U.W |
| Court | Minnesota Supreme Court |
Action in the district court for Winona county to recover $2,000 on the beneficiary certificate of defendant corporation which read as follows:
The amended complaint alleged, inter alia, that during the remainder of his life Behlmer in every particular duly kept and performed each and all of the laws, rules and requirements of defendant, made timely payments of all its assessments and remained a member in good standing until his death; that he died on or about July 17, 1901, or at some time thereafter and prior to July 28, 1902; set out the facts of his disappearance and absence for seven years, that no tidings of him had ever been received, and that plaintiff could not make proof of his death prior to July 17, 1908, for the reason that not until that date had the period of seven years elapsed since his disappearance. The answer denied the allegation of death on or about July 17, 1901, or at any other time; set up that by Behlmer's application he agreed that compliance with all the laws and regulations of the order was the condition on which he was entitled to share in the beneficiary fund, his failure to pay the assessment due on or before July 28, 1902, his suspension from membership in the order, and set up the defense of the statute of limitations. The reply set up the provisions of the constitution and by-laws relating to proofs of death and commencement of an action, and alleged that prior to July 17 1908, no person could have made proof of Behlmer's death which could only be made by proof of facts and circumstances raising a presumption of his death, because of his disappearance and continued absence for seven years.
The case was tried before Snow, J., and a jury which rendered a verdict in favor of plaintiff for the amount demanded. From an order denying defendant's motion for judgment notwithstanding the verdict or for a new trial, it appealed. Affirmed.
Presumption of Death after Seven Years Absence.
The contract under which a certificate of membership was issued by appellant provided that proofs of death of any member should be furnished by the beneficiary and filed with the grand recorder before the lodge would be in any way liable, and "no action or proceeding to recover upon any beneficiary certificate issued by or upon which this grand lodge is claimed to be liable, shall be commenced or maintained by any person or persons until proofs of death have been furnished and passed upon by the committee on finance or by the board of directors, as hereinbefore provided." In an action brought by the beneficiary upon the certificate for the death of the insured, in this case, held:
1. The character of the insured, the manner of his life, his relationship to his family, and the circumstances of his disappearance, together with the fact that he had not been seen or heard from for the period of seven years, constituted evidence sufficient to justify the jury in finding that the insured died prior to the twenty-ninth of July, 1902.
2. When considered in connection with the entire charge, the court did not err in instructing the jury that a presumption of death arose after the period of seven years, if they should find from the evidence that on July 17, 1901, the insured left his home, wife, and children, had never returned, and no tidings from him had ever been received.
3. Properly construed, the contract provided that no cause of action arose until proofs of death were furnished or produced by the beneficiary, and such proofs must be furnished within a reasonable time after death, according to the circumstances, and not necessarily within the statutory limitation from the time of death.
4. In assuming that the insured died within one year from the date of his disappearance, and in thereafter stopping payment of assessments on that account, the beneficiary did not surrender her right to produce proofs of death within a reasonable time after such proofs were available.
5. We find no errors in the court's instructions to the jury.
William B. Anderson, for appellant.
Plaintiff having alleged in her complaint and claimed in her testimony that said Fred Behlmer died prior to July 29, 1902, this action not having been commenced until October 12, 1908, was barred by the statute of limitations. A cause of action under the certificate in question accrued at the date of the death of the person to whom same was issued, if he did die, as alleged, prior to July 29, 1902. The furnishing of proofs of his death is no part of the cause of action under said certificate, but merely a step in the remedy. To permit a person who has a cause of action by reason of the death of the insured to postpone furnishing proofs of such death for more than six years, would be contrary to the spirit of the statute of limitations and practically annul the statute. Litchfield v. McDonald, 35 Minn. 167; Ganser v. Ganser, 83 Minn. 199, 200; State v. Norton, 59 Minn. 424, 430; 4 Am. & Eng. Ann. Cas. note p. 728.
Plaintiff failed to prove a seven years' absence of the sort from which the law presumes death, and failed to establish such circumstances and conditions under which this court in Spahr v. Mutual Life Ins. Co., 98 Minn. 471, said a jury might be warranted in finding the death of a person to have occurred at, or about the time of, his disappearance. If, from the respondent's evidence, any legal presumption of Behlmer's death could be said to exist, defendant produced evidence sufficient to rebut any such presumption.
The evidence in this case discloses the fact that practically no effort or search was made by respondent or caused to be made by her to ascertain the whereabouts of her husband, and the uncontradicted evidence clearly establishes that the motive for said Behlmer's disappearance was to escape the consequences of his defalcation as treasurer of the school district.
Webber & Lees and Theodore Buehler, for respondent.
At common law after the lapse of seven years without intelligence concerning a person, who has disappeared from his place of abode, the presumption of life ceases and the burden of proof devolves on the party who asserts that such person is still alive. Or, as sometimes stated, the presumption of life continues for seven years. At the end of that period, it ceases and gives way to a presumption of death. Northwestern Mut. Life Ins. Co. v. Stevens, 71 F. 258, 260; Policemen's Ben. Assn. v. Ryce (213 Ill. 9), 104 Am. St. 190, 199, and note. The presumption of death thus arising is sufficient to make a prima facie case for the party who must prove death to establish his cause of action. Cowan v. Lindsay, 30 Wis. 586, 589, 590. It may be rebutted by the opposite party by showing facts or circumstances inconsistent with or contradictory of the presumption of death. When evidence of that sort is produced, the question of whether the person whose death is alleged is in fact dead is for the jury's decision, and their verdict is as final as it is upon any other disputed question of fact properly submitted to them. This state has adopted in substance the common law rule as stated. State v. Plym, 43 Minn. 385; Spahr v. Mutual Life Ins. Co., supra.
The burden of proving the date of death is upon the party who alleged that it took place at any given time, is the rule in this state. Spahr v. Mutual Life Ins. Co.
Proof of the state of Behlmer's accounts and of his indictment was competent as having a tendency to rebut the presumption of death. Whether these facts were sufficient to overcome the presumption was a question of fact for the jury. Mutual v. Martin, 108 Ky. 11; Winter v. Supreme Lodge, 96 Mo.App. 1.
Plaintiff's cause of action accrued when proofs of death were furnished, and plaintiff had a reasonable time in which to furnish such proofs. Chandler v. St. Paul, F. & M. Ins. Co., 21 Minn. 85, 89.
It may be suggested that plaintiff might have made proof of her husband's disappearance at any time after July 17, 1901, coupled with a demand for payment and that if payment was refused she might have sued. This is true, but the inevitable result of such a course would have been a judgment against her. She could not recover without proving that her husband was dead. She could only prove that he had disappeared. He had not encountered any specific peril, such as might permit a jury to infer that he had died before his absence had continued for seven years. The case is not like those where a man embarks on a ship which never reaches port or which comes to port without him, or where there is an explosion in a mine where a man was at work, but his body is never found.
The great weight of authority sustains the proposition that a limitation such as is found in the by-laws of appellant here providing that suit must be brought within two years from the date of death, is to be construed in connection with the other provision of the by-laws that no liability shall attach until proofs of death have been made,...
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