Donea v. Massachusetts Mut. Life Ins. Co.

• Decision Date: 15 June 1945
• Docket Number: No. 34021.,34021.
• Citation: 19 N.W.2d 377,220 Minn. 204
• Parties: DONEA v. MASSACHUSETTS MUT. LIFE INS. CO.
• Court: Minnesota Supreme Court

19 N.W.2d 377

220 Minn. 204

DONEA v. MASSACHUSETTS MUT. LIFE INS. CO.

No. 34021.

Supreme Court of Minnesota.

June 15, 1945.

Rehearing Denied July 10, 1945.

Appeal from District Court, Hennepin County; E. A. Montgomery, Judge.

Action by Kordelia Genette Donea against the Massachusetts Mutual Life Insurance Company on life insurance policy on ground that absentee insured was dead. From a judgment for plaintiff for $4,539.-50, the defendant appeals.

Affirmed.

Robert L. Van Fossen and Ernest E. Watson, both of Minneapolis, for appellant.

Freeman, King & Geer, of Minneapolis, for respondent.

PETERSON, Justice.

Plaintiff as beneficiary sues on an insurance policy for $5,000 issued by defendant on her former husband's life. Plaintiff claimed that the insured was dead by presumption on August 15, 1943. This defendant denied. There was no direct proof that he was either dead or alive on the date mentioned. In order to establish the presumption of death, plaintiff introduced evidence to show insured's unexplained disappearance from his home without any tidings from him for a continuous period of over seven successive years. Defendant's evidence consisted of the life mortality tables showing that a man of insured's age had a life expectancy several years beyond the date on which plaintiff claimed he presumptively died. The issues here concern the sufficiency of the evidence to sustain a finding of death, the correctness of an instruction concerning the presumption of death, and alleged error in denying defendant's motion for a new trial upon the ground of newly discovered evidence.

The insured disappeared on August 15, 1936. Plaintiff claimed that he was presumptively dead seven years after that date. Plaintiff and insured were married June 22, 1927, in St. Paul, where plaintiff had spent her entire life except for about two and a half years spent in Minneapolis and California. About a year after their marriage, insured procured the policy of insurance sued on in which plaintiff was named as beneficiary. In 1932, they moved into a house at 1625 Hartford avenue in St. Paul, which plaintiff's mother conveyed to her, where they resided until insured disappeared.

During the day of August 15, 1936, plaintiff and insured went to her mother's home. They picked grapes at the place next door. Insured left ostensibly to collect an account. Late in the afternoon plaintiff returned to their home. She found that insured had been home and had finished painting the back porch. After she had been in the house a short time she discovered a note on the kitchen table written by insured which reads: "Dear Kor: I am leaving for the mountains because I want to be a forest ranger and I can't seem to get down to brass tacks here. I know you won't let me go so I am taking this way out. But will write and let you know where I am and how I am getting along. Better move in with ma for the winter. Love. Bill." He left $150 in cash in a drawer accessible to both of them. He departed in his automobile.

It appears without dispute that insured's absence from his home and usual place of abode was continuous for more than seven successive years and that there was complete absence of any tidings from him. There was a sharp conflict as to whether his absence was unexplained and whether plaintiff had made or caused to be made a diligent search for him.

The evidence concerning the fact of whether the insured's disappearance was unexplained was in conflict. It is undisputed that he was an even-tempered, uncommunicative sort of person of good habits. He was 38 years old and plaintiff 32 when he disappeared. At that time insured was employed in the painting and decorating business. At various times he had driven milk and ice cream delivery trucks. He had been in California and on the West Coast. His health was good except for acidity of the stomach, which made it necessary for him to "diet." There was evidence that he and plaintiff were happily married, that they had and enjoyed many things in common such as a circle of friends and membership in a church where she played the organ and he had charge of the Boy Scout troop; that they had spent about two weeks together on a vacation in Yellowstone National Park; that, except for minor differences, they had had no quarrels or disputes; and that, on the whole, their married life was harmonious and happy. With respect to the last-mentioned matter, plaintiff testified in answer to a question whether they were very happy that they were happy. Numerous witnesses testified to such a state of facts. On the other hand, there was evidence that, at least so far as plaintiff was concerned, all was not well. There was a suggestion of another woman in the case, but no proof of that fact; that insured was away from home nights a good deal; that he treated plaintiff cruelly; and that less than a year after his disappearance she obtained a divorce upon the ground of cruel and inhuman treatment. Service of the summons in the divorce action was made upon insured by publication. Plaintiff explained that the divorce was obtained on the advice of her then counsel in order to enable her to convey their home; that, while she verified the divorce complaint, she had not read it; and that many of the allegations therein were not true. On the present state of the record, we cannot say whether or not with the explained matters out of the divorce case enough remained to support a judgment for divorce; nor is it necessary that we should do so.

The evidence to show diligent search for insured was to the effect that plaintiff made inquiries of the secretary of state to determine whether insured had transferred the Minnesota license on an automobile he took with him; that she had made similar inquiries of the automobile registration department of every state of the United States and every province of Canada except one; and that she had inquiries directed to the department of vital statistics and the highway department accident bureau of every state west of the Mississippi River and to the Selective Service and Social Security Boards of the federal government. In addition, she communicated with defendant, as the insurer, about a year and a half after insured's disappearance and cooperated with defendant in trying to located insured. Defendant explained to her that it had facilities for finding missing persons which it offered to use. Annually thereafter plaintiff corresponded with defendant concerning the matter and each year was advised that it had not been successful in locating insured. No trace of insured was found as a result of such inquiries. Defendant makes the point that the inquiries were insufficient because none were made of metropolitan police departments, including those of St. Paul and Minneapolis.

After August 15, 1936, insured did not pay any insurance premiums. Apparently the policy had a cash surrender value which with dividends accruing was sufficient to cover the premiums. Plaintiff paid them by loans against these items. Insured did not attempt to collect the cash surrender value of the policy and accrued premiums.

The only evidence offered by defendant was the mortality experience tables, according to which insured had a life expectancy of 29.63 years when he disappeared and 24.54 years at the time of trial.

The trial judge in effect instructed the jury that, where a person has disappeared and been absent from his last or usual place of residence continuously for seven years without any tidings from him, and such absence is unexplained and diligent search has failed to discover the person, "under the law * * * a presumption arises that such person is dead"; that, if the jury found the facts which in law "give rise to the presumption, * * * the presumption is that the absentee no longer lives at the expiration of the seven years from his disappearance"; but that the presumption is not conclusive as to the fact of death; and that "The fact as to death is for the jury to determine and decide from the evidence that has been received upon the trial. The jury are the sole judges of the issues of fact, and in this case it is the duty of the jury to consider all the evidence that has been received as to the circumstances of the disappearance of the insured, as to his unexplained absence for seven years; as to no tidings from him during such period; as to the efforts made to find the absent person, and from all the evidence you will determine whether or not William Christopher Anderson, the insured, was dead on August 15, 1943." No further reference was made in the charge to presumption of death, but the jury was instructed further in four different connections that its verdict should be based upon the evidence. There was an explicit direction to consider the mortality tables showing insured's probable life expectancy in determining whether he was dead on August 15, 1943.

Plaintiff had a verdict for $4,539.50, the face of the policy less deductions for premium loans, which was the amount due thereon if she was entitled to recover. Defendant appeals.

1. The requirement of diligent search for an absentee insured is satisfied by such search and inquiry as a reasonably prudent person would make in view of the circumstances. The search should extend to all places where information is likely to be obtained and to all persons who in the ordinary course of events would be likely to receive tidings of the absent person, and it must be unsuccessful. Swanson v. Modern Brotherhood, 135 Minn. 304, 160 N.W. 779. Where the evidence is in conflict, the question as to whether the search was diligent is ordinarily one of fact. Boynton v. Modern Woodmen, 148 Minn. 150, 181 N.W. 327, 17 A.L.R. 401. Where inquiry of metropolitan police would be likely to result in information, it must be made, see, Goodier v. Mutual Life Ins. Co., 158 Minn. 1, 196 N.W. 662, 34 A.L.R. 1383, but not otherwise. Here, we think that the evidence...