Edwards v. Equitable Life Assur. Soc., Etc.

• Decision Date: 28 January 1944
• Citation: 296 Ky. 448
• Parties: Edwards v. Equitable Life Assur. Soc. of United States.
• Court: United States State Supreme Court — District of Kentucky

296 Ky. 448

Edwards v. Equitable Life Assur. Soc. of United States.

Court of Appeals of Kentucky.

January 28, 1944.

1. Insurance. — In action to recover on group life policy upon ground of presumed death through absence of seven years, probative value of testimony that witness had seen insured at certain place 80 miles from home at time when plaintiff claimed insured had committed suicide was for jury.

2. Death. — In action on group life policy, evidence held sufficient to show degree and character of diligence required before it could be said that missing person was dead as presumption of law.

3. Death. — Where insured had been missing for more than seven years, death was presumed to have occurred at the end of the seven year period, but it could be alleged and proved that death occurred in the beginning.

4. Death. — In action on group life policy, evidence warranted jury's finding that insured's death occurred not only at beginning of seven year period antedating the suit, but shortly after he left his employer's service station in late afternoon or early evening of day on which he told helper that he was going to end everything.

5. Insurance. — Life insurance contracts are construed liberally in favor of the insured or beneficiary.

6. Insurance. — Under group life policy providing that insurance ceased immediately upon termination of insured's employment, the phrase "termination of employment" referred to existence of relationship of employer and empolyee and to status of insured in that regard at the time of his death, so as to make applicable all parts of the insurance contract.

7. Insurance. — What employer did in later marking its records that insured had ceased his employment on certain date when beneficiary claimed insured committed suicide could not affect status of employee insured under group life insurance policy.

8. Insurance. — In group life insurance policy providing that insurance ceased immediately upon termination of insured's employment, the phrase "termination of employment" meant a complete severance of relationship of employer and employee by positive act on part of either or both.

9. Trial. — Intention or mental attitude of a person with respect to an act done by him as by changing his status in a particular situation or relationship is a factual matter to be determined by jury from consideration of all circumstances and inferences where it is not conclusively manifested.

10. Insurance. — Provision of group life policy as to termination of insurance coverage on termination of employment must be given an ordinary and realistic construction or such as is understood in its ordinary and popular sense.

11. Insurance. — If circumstances showed that employee insured under group life policy left employer's filling station with intention of taking his life without delay or as soon as his purpose could be effected, and he did so in fact, then, within spirit and intent of policy providing that insurance automatically ceased immediately upon "termination of employment", insured was covered by its terms.

12. Appeal and Error. — Court of Appeals was not required sua sponte, on appeal, to search record for any other ground of error than the ones claimed by appellant.

13. Insurance. — Where group life policy provided that insurance was payable upon receipt of due proof of death and insurance was claimed upon ground of presumed death through seven years' absence, but insurer denied liability so that proof of death was unnecessary, interest was allowable only from date of commencement of action.

14. Trial. — In action on life policy, time from which interest should be calculated, being purely a matter of law, instruction was erroneous in submitting such question to jury in connection with principal sum to be awarded if verdict should be for plaintiff, since court should have dealt with the matter in the judgment irrespective of the verdict.

Appeal from Fayette Circuit Court.

Lawrence C. Jenkins for appellant.

Wm. Marshall Bullitt, Eugene B. Cochran, William Mellor, Bullitt and Middleton for appellee.

Before Chester D. Adams, Judge.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Reversing.

Under the terms of two policies of group insurance issued by the appellee upon the lives of employees of the Standard Oil Company, Goodloe B. Edwards was insured in the sum of $3,000. Edwards disappeared and has not been heard from since March 30 or 31, 1931. His son as beneficiary prosecutes this suit to recover the insurance upon the ground of presumed death through an absence of seven years, but his right to recover rests upon the sufficiency of the evidence to show that the insured committed suicide at the beginning of the term, that is, on March 30, 1931, while his insurance was in effect. The defendant pleaded affirmatively that its liability had automatically terminated because the insured had ceased to be an employee of the Standard Oil Company when and if he met his death.

The plaintiff recovered a verdict, but it was set aside upon a motion for a new trial. On sustaining the motion the court expressed the opinion that upon the plaintiff's theory that the insured had left his place of work and gone to the river and drowned himself, he had in fact and in law abandoned his employment before he met his death. On the second trial, it was stipulated that the evidence would be the same, and the court directed a verdict for the defendant. It was further stipulated that the transcript of evidence heard on the first trial should be considered and used on this appeal from the second judgment.

For fourteen years Edwards had been the manager of a gasoline service station in Ashland for the Standard Oil Company. His employment was indefinite as to term and compensation was on a commission basis. He had no regular hours to work and was free to come and go. He had become a liquor addict and in later months drank heavily. His business had fallen off materially. He and his son lived in a rooming house when the latter was not in Lexington attending the University. Several days before he disappeared he had thrown the bedding on the floor, pulled back the rug, left the dresser drawers open and otherwise created disorder in the room, the like of which was contrary to his usual quiet and tidiness. Several times while shaving he was heard to be cursing himself as he looked in the mirror. He became greatly depressed and worried over the falling off of business and the prospect of not being able "to hold out" until his son got through college. In the afternoon of March 30th, he unsuccessfully tried to cash a check for $400. Later he got a $50 check cashed, payment of which was declined by the bank. That was the first time Edwards had ever defaulted in anything owing the store where it was cashed. Luster Oxley, then a high school student. worked for him at the filling station on Saturdays and after school. He testified that Edwards was unusually restless and nervous that afternoon and walked around aimlessly without ever sitting down. He told Oxley that his business was bad; that he felt so bad he did not see how he was going to make it; that he would not need him any longer; that he was going to end everything before he closed the station that night. Oxley did not pay serious attention to this threat because Edwards was then very much intoxicated. He had gone to his room, where his landlady heard him moving about and apparently tearing up some papers. He left there without his suit case or other receptacle, and returned to the station shortly after 5 o'clock. Oxley left in a few minutes. Edwards was never seen afterward, unless at Maysville, as we shall describe. The station was three or four blocks from the Ohio River.

About 7 o'clock that evening, Earl Weaver, an auditor for the Oil Company, went by the station to take up the cash (of which there had been very little in recent weeks) and found the lights had not been turned on. Edwards was not there. His desk had been partially straightened up and the keys were lying on it. Finding the keys loses its apparent significance through the testimony of Oxley that it was the custom to leave them there. There was no money but some "charge tickets" were in a desk drawer. Weaver had expected to check the station's accounts the next day. Edwards had been lately padding his inventories and accounts a little, but nothing had been done about it except to admonish him and to straighten up his accounts. It developed that at the time of his disappearance he owed the company around $60, but had commissions coming to him of about $90.

The next day, March 31st, Edwards' son, a student at the University in Lexington, received a letter from his father enclosing $70 in cash, and saying that he did not know how he could send him any more; that by the time he got the letter the river would have him, and that he wanted his son to take care of his mother. The letter was postmarked at Ashland on March 30th. The son went to Ashland as soon as he could and began a search for his father. He found all of his clothing and effects in his room, except those he was wearing, and his coveralls hanging in their usual place at the service station. The testimony of a witness that he had seen Edwards in Maysville, eighty miles away, on March 30th or 31st, is not persuasive. At least its probative value was for the jury. Commonwealth Life Ins. Co. v. Wood's Adm'x, 263 Ky. 361, 92 S.W. (2d) 351.

We think the evidence sufficient to show the degree and character of diligence required before it can be said that a missing person is dead as a presumption of law. In this state it is held in cases of this kind that death is presumed to have occurred at the end of the seven-year period, but that it may be alleged and proved that it occurred in the beginning. Commonwealth Life Ins. Co. v. Caudill's Adm'r, 266 Ky. 581, 99 S.W. (2d) 745; second appeal 276 Ky. 149, 122 S.W. (2d) 989. We have held that a...