Connecticut Mut. Life Ins. Co. v. King

• Decision Date: 16 February 1911
• Docket Number: No. 7,153.,7,153.
• Citation: 93 N.E. 1046,47 Ind.App. 587
• Parties: CONNECTICUT MUT. LIFE INS. CO. v. KING.
• Court: Indiana Appellate Court

47 Ind.App. 587

93 N.E. 1046

CONNECTICUT MUT. LIFE INS. CO.

v.KING.

No. 7,153.¹

Appellate Court of Indiana.

Feb. 16, 1911.

Appeal from Circuit Court, Monroe County; Jas. B. Wilson, Judge.

Action by Elizabeth V. King against the Connecticut Mutual Life Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed, with instructions.

Remy & Berryhill and Miers & Corr, for appellant. J. E. Henley and Duncan & Batman, for appellee.

ADAMS, J.

Appellee recovered judgment against the appellant on a policy of life insurance issued on the life of her then husband Presley T. Buckner on November 23, 1865, in which she was made beneficiary.

The complaint is in one paragraph, and after formal allegations setting forth the nature and organization of appellant and the execution of the policy sued on alleges that, on November 23, 1865, appellee was the wife of said Buckner and so continued as his wife until the said Buckner absented himself from the city of Bloomington, Monroe county, Ind., in the month of February, 1867; that this plaintiff many years after said Buckner absented himself intermarried with one King, and that she is now the widow of said King; “that during the month of February, 1867, the said Presley T. Buckner departed from the city of Bloomington, in the county of Monroe, state of Indiana, where he had hitherto resided with his family and which had for a long time prior thereto, to wit, 10 years, been his home, and went to the city of New Orleans, in the state of Louisiana, upon private business, and from thence hitherto has never been seen or heard of; that at the time he absented himself, as aforesaid, his usual place of residence was in the city of Bloomington, Monroe county, Ind.; that at the time said Presley T. Bucknerabsented himself from his usual place as aforesaid the policy of insurance was in full force and effect, and that the premium thereon had been paid to the defendant up to the 23d day of November, 1867; that the last time the said Presley T. Buckner was seen was in the month of February, 1867, in the city of New Orleans, in the state of Louisiana, and that no person has seen or heard of him from that time to the present day. Plaintiff further alleges that in said month of February, 1867, by virtue of the premises and in presumption of law, the said Presley T. Buckner died, which fact the defendant well knew.” It is further averred that appellee had no knowledge of the existence of said policy of insurance until September, 1904; that appellee then caused appellant to be notified of the disappearance of said Buckner, and furnished appellant with proof of the death of said Buckner, in presumption of law; that appellant, prior to the commencement of this action, denied any liability upon said policy of insurance, and has refused to pay plaintiff the amount of said policy on the ground that no liability existed against the appellant thereon; that insured and appellee each duly performed all the conditions of said policy of insurance on their part to be performed by the provisions, and that no part of said policy has been paid. A copy of the policy is made a part of the complaint.

Appellant answered by general denial and 10 paragraphs of special answer. A demurrer was overruled as to the second, fifth, sixth, and eleventh paragraphs, and sustained as to the third, fourth, seventh, eighth, ninth, and tenth paragraphs, and appellee replied by general denial and three paragraphs of special reply. The second paragraph of reply was directed to the second and eleventh paragraphs, and the third to the sixth paragraph of answer. Upon the issues thus formed the cause was tried by the court, and by request a special finding of facts was made, and conclusions of law stated thereon. Appellant's motion for venire de novo and for a new trial were overruled, and judgment rendered for appellee.

The first error assigned and relied upon for reversal is the overruling of appellant's demurrer to the complaint. Numerous other errors are assigned, but, under the conclusion reached, the consideration of such errors would serve no purpose. The controlling question, we think, relates to the law which governs the presumption of death in a case of this kind.

The suit being upon a contract of insurance on the life of Presley T. Buckner, there can be no recovery, unless it is charged in the complaint and shown by the proof that Buckner is dead. Nowhere in the complaint is there a direct allegation of death. After setting out the fact of the disappearance of Buckner, and the further fact that he had not been seen or heard of since February, 1867, it is then averred “that in said month of February, 1867, by virtue of the premises and in presumption of law the said Presley T. Buckner died.” The averment of presumptive death is insufficient; facts, and not presumptions, conclusions, or the evidence of facts, must be pleaded. 12 Ency. Pl. & Prac. 1022; Jackson School Township Tp. v. Farlow, 75 Ind. 118;Indiana, etc., R. Co. v. Adamson, 114 Ind. 282, 15 N. E. 5.

Appellant makes further objection to the complaint that the statute under which a recovery is sought does not apply to the case here presented. The statute in question reads thus: “The presumption of death, recited in the first section of the said act above entitled as amended, in the case of any person who, since the passage of said act and the amendment above recited, has absented himself from his usual place of residence and gone to parts unknown, or who has not been heard of for the period of five years, shall relate back to the time of the first disappearance of such absentee; and it shall be presumed and taken by all courts that such absentee was dead on the first day of his disappearance: Provided, however, that this section shall not apply to any suit now pending, neither shall a party holding or entitled to the proceeds of any policy of insurance upon the life of such absentee, where the five years have expired prior to the passage and taking effect of this act, and whose duty it is to make proof of the death of such absentee, be required, when such proof is not prohibited by the contract with the insurer, to make other proof of death than the fact of the disappearance of the insured for five years continuously.” Section 2748, Burns' Ann. St. 1908.

The act referred to in section 2748, supra, is the first section of the act approved March 5, 1859 (Laws 1859, c. 4), as amended by the act of March 9, 1861 (Laws 1861, c. 52), being section 2747, Burns' Ann. St. 1908, and is as follows: “When any resident of this state shall have absented himself from his usual place of residence, and gone to parts unknown, for the space of five years, leaving property, real or personal, without...