Delaney v. Metro. Life Ins. Co.

• Decision Date: 06 November 1934
• Citation: 257 N.W. 140,216 Wis. 265
• Parties: DELANEY v. METROPOLITAN LIFE INS. CO.
• Court: Wisconsin Supreme Court

216 Wis. 265

257 N.W. 140

DELANEY

v.METROPOLITAN LIFE INS. CO.

Supreme Court of Wisconsin.

Nov. 6, 1934.

Appeal from a judgment of the Circuit Court for Milwaukee County; A. H. Reid, Judge.

Action by Mattie Delaney, as administratrix of the estate of Noah Delaney, deceased, against the Metropolitan Life Insurance Company. From a judgment of the circuit court affirming a judgment of the civil court for plaintiff, defendant appeals.--[By Editorial Staff.]

Affirmed.

The action was commenced on July 27, 1932, by Mattie Delaney, as administratrix of the estate of Noah Delaney, deceased, plaintiff, against the Metropolitan Life Insurance Company, defendant, to recover the face value of three separate policies of life insurance issued by the defendant company upon the life of Noah Delaney, husband of plaintiff, and of which policies plaintiff was the beneficiary, together with premiums paid by plaintiff after the time of her husband's alleged death. The issues were the fact and time of insured's death. The case was originally tried in the civil court without a jury. The trial court made and filed his findings of fact, in which he found that insured was dead; that he died on the date of his disappearance from home, and that plaintiff was entitled to the face value of the policies and a return of the premiums paid after the death of the insured. Judgment was entered upon these findings. On appeal to the circuit court, judgment was entered on February 19, 1934, affirming the judgment of the civil court. Such facts as are material to the issues represented upon this appeal will be stated in the opinion.

Bloodgood, Stebbins & Bloodgood, of Milwaukee (Albert K. Stebbins and G. Kenneth Crowell, both of Milwaukee, of counsel), for appellant.

Corrigan, Backus, Ruppa, Bortin & Backus, of Milwaukee (A. C. Backus, Jr., and Walter A. Backus, both of Milwaukee, of counsel), for respondent.

WICKHEM, Justice.

The plaintiff and Noah Delaney were married at Houston, Tex., in 1918. After living for short periods in Kansas City, Mo., and Sioux City, Iowa, they came to Milwaukee in December, 1922. The insured was a butcher by trade and was employed by the Plankinton Packing Company. At the time of his disappearance he was earning $35 a week. His wife conducted a rooming house at their residence. The testimony warrants the conclusion that plaintiff and her husband had always lived together in peace and tranquillity, that they had not quarreled, and that her husband was a man of regular habits. He was a steady worker, and brought his pay check home at the end of each week. He was earning more than he had ever earned before, and had had continuous employment for a period of nearly two years. Insured spent his evenings in the company of his wife. He did not drink. Plaintiff and her husband were members of a church, which they attended together twice a week. On the occasion of his disappearance, the husband left at his usual time, and, as the wife supposed, was bound for his work. He kissed his wife good-bye, left, and never returned. The wife inquired of a fellow worker as to whether he was at work that day, and was informed that he had not been. A week after this plaintiff wrote to her husband's mother, making inquiry, and a little later wrote to his sister. She received no answer to these letters. Plaintiff did not appeal to the police department and made no further investigation. At the suggestion of the insurance agent, plaintiff kept up the premiums on the policies throughout the seven-year period.

[1] The first contention of defendant is that the evidence is insufficient to establish the insured's death at the time of the commencement of this action. A careful analysis of the Wisconsin cases dealing with the presumption of death after seven years has been made by defendant, but it is deemed unnecessary at this time to engage in an elaborate discussion upon this point. The whole subject was completely reconsidered and reviewed in Egger v. Northwestern Mut. Life Ins. Co., 203 Wis. 329, 234 N. W. 328, and we adhere to the determination in that case. There is consequently only one matter that calls for any consideration in connection with this contention, and this because it was not dealt with in the Egger Case. The rule in Wisconsin as set forth in Ewing v. Metropolitan Life Insurance Co., 191 Wis. 299, 210 N. W. 819, is that a showing of diligent search is unnecessary as a condition precedent to the presumption of death after seven years. This case adhered to the rule theretofore laid down in Miller v. Sovereign Camp Woodmen of the World, 140 Wis. 505, 122 N. W. 1126, 28 L. R. A. (N. S.) 178, 133 Am. St. Rep. 1095, and Page v. Modern Woodmen of America, 162 Wis. 259, 156 N. W. 137, L. R. A. 1916F, 438, Ann. Cas. 1918D, 756. We see no reason for departing from this rule. Much of the difficulty which attends the application of the presumption of death after seven years under the circumstances prescribed arises from the fact that, while in some of its aspects the rule is one of policy, it has for a basis a genuine inference of fact. For example, the selection of seven years is arbitrary, at least to the extent that it establishes a minimum of proof. On the other hand, the fact that this presumption depends upon the circumstances of the case, and that, if a person disappearing has no one with whom he would be likely to communicate, or that if he leaves under circumstances which preclude any likelihood of his communicating or returning, the presumption of death is rebutted or may never attach, discloses that the presumption...