Butler v. Mut. Life Ins. Co. of New York

• Citation: 225 N.Y. 197,121 N.E. 758
• Parties: BUTLER v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Decision Date: 07 January 1919
• Court: New York Court of Appeals

225 N.Y. 197

121 N.E. 758

BUTLER

v.MUTUAL LIFE INS. CO. OF NEW YORK.

Court of Appeals of New York.

Jan. 7, 1919.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Bertha Butler against the Mutual Life Insurance Company of New York. From a judgment of the Appellate Division (173 App. Div. 1001,159 N. Y. Supp. 1103), affirming a judgment for plaintiff entered on the verdict of a jury, defendant appeals. Reversed, and new trial granted.

Hiscock, C. J., and Pound and Andrews, JJ., dissenting.Murray Downs, of New York City, for appellant.

Hiram Wooden, of Rochester, for respondent.

COLLIN, J.

The beneficiary in a policy of life insurance brought the action to recover the amount of the insurance. The policy, issued by the defendant, dated May 12, 1905, insured Charles E. Butler. The plaintiff offered no direct evidence of his death, relying on the presumption of death arising from his absence, unheard of, during more than seven years. At the trial the defendant duly excepted to the denial of its request at the close of the evidence that the complaint be dismissed. The jury, under the submission of the question whether or not the absence of the insured was caused by his death, rendered a verdict in favor of the plaintiff. The decision of the Appellate Division (173 App. Div. 1001,159 N. Y. Supp. 1103) was not unanimous. We are therefore to determine whether or not the evidence upheld the presumption.

The evidence justified the jury in deeming established the facts: In May, 1905, the insured resided with his parents and two brothers in the city of Rochester, N. Y. In March, 1906, having learned the machinist's trade, he went to St. Louis, Mo., and became an employé, as a traveling installer, of a telephone company. He was 22 years of age, in sound health, of good appearance and habits. He had received an ordinary education and possessed ordinary intelligence. He remained in the employ of the telephone company about one year, during which, in the performance of his duties, he traveled quite extensively. In April, 1907, he became an employé of the Western Electric Company at Coffeyville, Kan. When such employment ceased is not disclosed. At the time he left Rochester his relations with the members of his family were very friendly. Through the year next succeeding March, 1906, he very frequently wrote letters to his mother. He wrote to no other member of the family. Thereafter his letters were infrequent, and after October, 1907, no letter or communication was received by his mother from him, and no tidings whatsoever of him were received by his mother or anybody else to her knowledge. A letter from him to his mother dated St. Louis, Mo., March 16, 1906, stated that he inclosed for her a money order for $10 of his wages. A like letter under the date of March 31, 1906, stated:

‘Received your letter yesterday and as pay day is here I waited till I could send a money order.’

A letter from him, dated ‘Sterling, Kansas, Oct. 16, 1906,’ stated:

‘I thank you most greatly for your offer to me but it is true I haven't saved a cent. I earn enough to keep myself honestly and independent. I have left Dodge for a couple of weeks as I couldn't get my brakeman's job till after November 1st, so I thought I would try at other division points till I got a position or go back to Dodge; at any rate I shall make a visit east in the spring. I want to visit the mining towns in Colorado, if possible. Then I am going to settle down, if things are as good in Rochester, as when I left. It shall be there; if not, why money is what I want and it will be where there is money as I can't make much. * * * Address me at Newton, Kansas, Gen. Del'y.

In June, 1907, his mother received a postal card from him with the postmark on it, ‘June 4, 1907,’ and the inscription, ‘Plaza, Fort Scott, Kan.,’ which stated ‘going through to Kansas City.’ No communication came from him between the receipt of it and the receipt of a letter dated September 22, 1907. His parents and brothers had lost all trace of his whereabouts and occupation. In July, 1907, his mother wrote a letter to the Western Electric Company and a letter also to the employer telephone company, asking information with regard to him. Each company replied that it was unable to give her any information. In September, 1907, his mother received a letter from him, dated Hutchinson, Kan., September 22, 1907, which stated:

‘No doubt you will be surprised to hear from me as no doubt you think me in jail but I am not nor haven't been, but I have come to the conclusion that I am a failure in this old world and till I could take a brace I wasn't going to lie to you and make you think me a howling success. I am trying to get a job as brakeman on the Santa Fé R. R., as it pays pretty good money, averages about $100 per month. I need recommendations to get it. Must have one from some one who has known me for five years back. I have been straight that long now or you would have heard different by this time, so I want you to get Pa to get S. G. McGrail to say he has known me that long and he has and say I am straight. It doesn't put him under obligations to R. R. Co. and if he will do that I will promise you $10 a month for 6 mos. if I get the job. Write me a letter, don't scold, I may turn out O. K. after all, am certainly going to try. If I don't get this, I am going farther south for winter and north in spring. Tell me about S. P. Bernie, Elmer and Pa. I love you all, even if I have not showed it. Lovingly yours, Charlie. I leave Hutchinson to-night for Dodge City, Kansas, so address at Dodge City, Kansas, Gen'l. Del'y.’

Neither his mother nor father gave this letter answer or attention. The request was not complied with, and no attempt was made to renew or continue the correspondence with him. The only further communication between them were two postal cards received from him in October, 1907, the one postmarked Raton, N. M., which stated, ‘I am going farther west;’ the other postmarked Reno, Nev., which stated, ‘I am on my way.’ In 1910 the plaintiff made ineffectual inquiry concerning him of the police marshal of Raton, N. M. In 1912 she received letters, in response to inquiries by her, from the authorities of thirteen or more state penal institutions, stating in effect that he was not and had not been a member of either of those institutions. In 1914 and 1915 ineffectual inquiry was made by her of the police department of Sioux City, Iowa, of the post office authority of Oklahoma, Okl., and of the Union Pacific Railroad Company at Chicago, Ill. The plaintiff also advertised in the New York Journal and Rochester and Chicago papers. When the insured left Rochester there was a deposit in his name of about $100 which remained on deposit and had been transferred, at a time not disclosed, from his name to that of his mother.

[1] We have concluded that, as a matter of law, no inference could be reasonably drawn from those facts that the insured was dead.

[2][3][4][5][6] The law contains the general presumption that a person who had been continuously absent from his home or place of residence, and...