Claywell v. Inter-Southern Life Ins. Co.

• Decision Date: 06 April 1934
• Docket Number: No. 9771.,9771.
• Citation: 70 F.2d 569
• Parties: CLAYWELL et al. v. INTER-SOUTHERN LIFE INS. CO. OF LOUISVILLE, KY.
• Court: U.S. Court of Appeals — Eighth Circuit

70 F.2d 569 (1934)

CLAYWELL et al. v. INTER-SOUTHERN LIFE INS. CO. OF LOUISVILLE, KY.

No. 9771.

Circuit Court of Appeals, Eighth Circuit.

April 6, 1934.

J. B. Daggett, C. E. Daggett, and Daggett & Daggett, all of Marianna, Ark., for appellants.

O. C. Brewer, George K. Cracraft, and Brewer & Cracraft, all of Helena, Ark., for appellee.

Before STONE and SANBORN, Circuit Judges, and WYMAN, District Judge.

STONE, Circuit Judge.

This is an action by a beneficiary upon two policies of life insurance. At the conclusion of the evidence for the plaintiffs, the court directed a verdict for the defendant. From the judgment entered thereon, plaintiffs bring this appeal. The main matter here is the sufficiency of the evidence, to go to the jury, upon the fact issue of whether the insured died within a certain period of time following his complete disappearance — which period is well within the five-year statutory presumption of death arising from continued absence.

The policies were issued December 23, 1920. Premiums were paid up to the point that the policies remained in force until June 25, 1927. The insured disappeared about August 10, 1926, and no information from or of him since. He was a resident of Arkansas and was last heard from in Florida. An Arkansas statute raises the presumption of death in the case of "any person absenting himself beyond the limits of this State for five years successively * * * unless proof be made that he was alive within that time" (Crawford & Moses' Dig. Ark. § 4111). This action was commenced about six months after a period of five years from August 10, 1926. The necessary contention of appellants is that the insured died during the time the policies were in force, that is, between August 10, 1926 (when he was last heard from) and June 25, 1927 (when the policies lapsed). The burden lay upon appellants to introduce such proof of death between the above dates as would warrant submission of that issue to the jury. While an issue of limitations is stressed by both parties, we need give it no consideration since it is of no importance unless we conclude appellants have carried the above burden as to the main issue and this, we think, they have not done.

The main issue here is not the fact of death but the time of death. The statutory presumption is of the fact of death at some time within the five-year period of unexplained absence, it has no reference to the date or time of death within the five years. Metropolitan Life Ins. Co. v. Fry, 184 Ark. 23, 41 S.W.(2d) 766. When a party desires to establish the approximate date of death within the statutory period, he assumes the usual and necessary burden of presenting evidence of a material fact — that fact being the time of death. In "disappearance" cases, it is obvious that there can be no direct evidence of death — otherwise, it would not be a "disappearance" case. The proof must be circumstantial in character. The main, if not the entire, strength of circumstantial evidence is that the "circumstances" shown point to but one logically probable conclusion. Obviously, the circumstances will vary with each case and it is clearly unsafe to generalize such into rules of judicial action. Courts have wisely refrained from doing so beyond a very limited extent in these recurring disappearance cases where the issue is time of death. We think these rules may be stated as two. The first and generally accepted one is that where the evidence shows exposure of the missing person to some specific, impending, or immediate peril or danger which might reasonably destroy life and he is not heard of thereafter and there is no evidence of a plausible reason for a voluntary disappearance, the issue is for a jury as to whether death was caused by such peril or danger. This is as far as the Supreme Court Fidelity Mutual Life Ass'n v. Mettler, 185 U. S. 308, 22 S. Ct. 662, 46 L. Ed. 922; Davie v. Briggs, 97 U. S. 628, 24 L. Ed. 1086 or this court Browne v. N. Y. Life Ins. Co., 57 F.(2d) 62; Folk v. United States, 233 F. 177, 189; Northwestern Mut. Life Ins. Co. v. Stevens, 71 F. 258 has yet gone. Appellants make no claim to come within the above situation (there being no evidence of any such peril or danger), but claim to fall within the rule announced by some courts to the effect that evidence of circumstances showing no reason for disappearance or self-destruction and every normal reason to the contrary would authorize submission of the issue as to death occurring at or shortly after disappearance. In our view of the evidence, it is unnecessary to determine whether this court will announce its adherence to such rule, since we think appellants have not brought themselves within it. We think it more useful and practical to adhere to the very good statement of Judge Gardner, for this court, in the Browne Case, supra, where he said (page 64 of 57 F.(2d): "Death might be proven by circumstantial evidence, as any other fact, but the party alleging death before the expiration of seven years must prove such facts and circumstances connected with the absence of the person as, when submitted to the test of reason and experience, would warrant a reasonable conclusion of death within a shorter period."

Having in mind the shortly above-stated contention of appellants and the rule as stated by Judge Gardner, we examine the sufficiency of the evidence here. All of the evidence is from witnesses of appellants. There is no conflict in the testimony. It reveals a young man of industry and vigor, respected by his community. When about sixteen years old, he came from Kentucky to Arkansas. Within six years he found employment, near himself in Arkansas, for his father and younger brother. Two years later he is deputy sheriff of the county. About two years later he volunteered in the World War, where he saw over-sea service and returned a lieutenant. After the War, he became active in Legion and National Guard affairs, becoming captain of one of the first companies organized in the latter. Again he became deputy sheriff until appointed circuit clerk and ex officio county recorder. In 1922, he was elected to that office without opposition and held office until his disappearance, in August, 1926. He had announced his intention not to run for re-election in the election for 1926. He is described as of pleasing personality, affable disposition, highly respected and liked. He "enjoyed life," hunting and fishing much. He was about thirty-five years old at the time of disappearance. He was a dutiful son. He bought a house at the county seat where he brought his father and mother. Later, he bought and moved his parents onto a two hundred-acre farm. He was particularly attached and attentive to his mother and would always inform her if he was delayed in coming home. At the time insured left, there were no irregularities in his office, but a balance due him. Then he owned the farm and some personal property, including a tractor, several head of live stock, and farming equipment. There was a crop on the farm. The farm was mortgaged for $8,000. Also, he owed "about $4,400.00" to Payne Bros. and the bank had a lien on his personalty. He had two brothers and a sister,...