Brunny v. Prudential Ins. Co. of America
| Decision Date | 23 February 1949 |
| Docket Number | 31480. |
| Citation | 151 Ohio St. 86,84 N.E.2d 504 |
| Parties | BRUNNY v. PRUDENTIAL INS. CO. OF AMERICA. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. A presumption is a rule which the law makes upon a given state of facts.
2. Where an individual leaves his family and usual place of residence and goes to parts unknown or a distant state and is not heard from for a period of seven or more years, a presumption arises that he is dead.
3. Such presumption of death is not conclusive and may be rebutted by counter-evidence.
4. Where one is appointed administrator of the estate of an individual presumed to be dead by reason of seven or more years unexplained absence, under the 'Presumed Decedents' Act' (Section 10509-25 et seq., General Code), and brings an action to collect the proceeds of a polity of insurance issued on the life of the presumed decedent, payable upon his death, the burden rests upon the plaintiff to establish the material averments of his cause of action by a preponderance of all the evidence, which burden never shifts.
5. Where, in such an action, the plaintiff introduces evidence that the absentee has been away from his usual place of residence, unheard from, for a period of more than seven years, and relies solely upon the presumption of death to establish his case, and the defendant introduces evidence which in its cumulative effect at least counterbalances such presumption, the plaintiff must fail.
6. In an action of the kind described, where upon all the evidence adduced reasonable minds could not fairly conclude that the presumption should stand, it disappears, and if in addition to such presumption there is no evidence tending to show that the absentee is in fact dead, the duty devolves upon the trial court to direct a verdict or render judgment for the defendant upon his motion therefor.
Appeal from Court of Appeals, Cuyahoga County.
Olga Brunny, as administratrix of the estate of her husband, Roy C. Brunny, under the statutory enactments entitled 'Presumed Decedents' Act' Section 10509-25 et seq., General Code, brought suit in the Municipal Court of Cleveland against the Prudential Insurance Company of America, hereinafter called company or defendant, to recover the proceeds of a life insurance policy issued by that company, April 28, 1890, on the life of Roy C. Brunny hereinafter called Brunny.
In her amended petition plaintiff alleged that Brunny disappeared October 19, 1936; that the company was notified thereof; that Brunny was declared dead by the Probate Court under the 'Presumed Decedents' Act,' as of November 1, 1943; and that there is due her on the policy the sum of $450, which the company refuses to pay.
Answering, the company admitted a number of the allegations of the amended petition, but averred that, if the policy was due and payable, plaintiff would be entitled to the sum of $427.86 and not $450 as claimed.
Further answering and by way of defense the company alleged that 'Roy C. Brunny is not dead but on the contrary is still alive and that for this reason no sum whatsoever is due plaintiff.'
At the trial, Before the court and a jury of six, evidence was offered by both parties, which will be narrated in the opinion.
Defendant moved for a directed verdict or for judgment at the close of plaintiff's case in chief and again at the close of all the evidence, which motions were overruled.
The jury returned a verdict for plaintiff in the sum of $427.86. Defendant's motions for a new trial and for judgment notwithstanding the verdict were overruled and judgment was entered on the verdict.
On appeal, the Court of Appeals reversed the judgment below as being against the manifest weight of the evidence and remanded the cause for retrial.
The case is now in this court for disposition, following allowance of the defendant's motion to certify the record.
McKeehan, Merrick, Arter & Stewart and Smith Warder, all of Cleveland, for appellant.
Payer, Bleiweiss, Crow & Mollison, of Cleveland, for appellee.
Plaintiff testified that she and Brunny were married in Cleveland, December 16, 1901; that he worked at several factories in or near there as a patternmaker and operated a shop of his own for a period of years; that after their marriage he made several trips to western states, and to Alaska on two occasions for protracted stays; that during all these absences he wrote her frequently; that on Brunny's second trip to Alaska he was injured in some manner, came home in October 1929, afterwards appeared to be ailing and was finally unable to obtain work.
Plaintiff further testified that her husband departed for the west on July 24, 1936, saying he planned to do some prospecting in the hills of California, and that she never saw him after that, although they were on friendly terms when he left.
In addition, plaintiff testified that before their marriage Brunny lost the first joint of his right thumb when it came in contact with a ripsaw during the time he was learning the trade of patternmaking.
Plaintiff identified two pictures of Brunny which she introduced in evidence--the first, a tintype, taken about the time she met him, suggesting an incomplete right thumb and the second, a snapshot, from which it might be inferred that the left thumb was intact.
Besides Brunny's injured thumb, plaintiff testified there was an anchor tattooed on one of his forearms--she couldn't remember which. Continuing, plaintiff testified that after Brunny's disappearance in 1936, she attempted to locate him by inquiry and letter, but without success.
The last communication she had from him, which was offered and received in evidence, was written on a penny postcard, enclosed in an envelope in the upper lefthand corner of which was printed and written, 'After 10 days return to Roy C. Brunny at address below Marysville, Calif.' The envelope was postmarked Marysville, California, October 19, 1936. In this communication he complained of feeling ill and requested that certain of his personal effects be forwarded to him by express to Marysville.
Plaintiff was shown two photographs purporting to be of Brunny and taken in California presumably after his disappearance in 1936. She denied that either represented her husband.
She further testified that after she reported Brunny's disappearance to representatives of the company, she furnished them a statement containing information about her family. Plaintiff then rested.
In support of its case, defendant introduced in evidence (photostat substituted) an application, dated December 16, 1901, and purportedly signed by Brunny, for a license from the Probate Court of Cuyahoga county authorizing the solemnization of a marriage between Roy C. Brunny and Olga Agnes Schroder, both aged 22. Defendant also introduced in evidence (photostat substituted) a printed 'Application for Position' with the White Motor Company, Cleveland, dated May 21, 1926, bearing the signature, 'R. C. Brunny,' as applicant, in two places and reciting, opposite a line reading 'Physical Defects if any,' 'Left thumb off at first joint.'
Besides, defendant called a witness who testified that he had known Brunny since about 1900 and had worked with him in Cleveland. He positively identified two of the three photographs introduced by the defendant as being of Brunny, one of them purportedly taken in California. He was uncertain about the third and last one shown him. This witness stated that Brunny
Defendant also called two witnesses--a photographer familiar with the making of tintypes and a tailor of long experience--whose testimony tended to prove that the tintype of Brunny introduced in evidence by plaintiff represented a reverse image of the subject, so that what appeared to be his right hand in the picture was in reality his left.
Then defendant offered in evidence the deposition of an individual, taken in California in 1946, who claimed to be Roy C. Brunny. This witness deposed that he was born in Massillon, Ohio, August 4, 1879, and that his occupations were 'pattern making and mining and traveling.' He gave his own name as Roy Clifford Brunny and gave the names of his father and mother, with the approximate dates of their deaths. He listed a number of the...
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