Egger v. Nw. Mut. Life Ins. Co.

• Decision Date: 13 January 1931
• Citation: 203 Wis. 329,234 N.W. 328
• Parties: EGGER v. NORTHWESTERN MUT. LIFE INS. CO.
• Court: Wisconsin Supreme Court

203 Wis. 329

234 N.W. 328

EGGER

v.NORTHWESTERN MUT. LIFE INS. CO.

Supreme Court of Wisconsin.

Jan. 13, 1931.

Appeal from a judgment of the Circuit Court for Milwaukee County; E. T. Fairchild, Circuit Judge.

Affirmed.

Action by Elizabeth A. Egger, plaintiff, commenced on the 28th day of December, 1928, against the Northwestern Mutual Life Insurance Company, defendant, to recover on a policy of life insurance. From a judgment rendered on the 17th day of April, 1930, in favor of the plaintiff, the defendant appeals.Sam T. Swansen and Norman L. Baker, both of Milwaukee, for appellant.

Churchill, Bennett, Churchill & Davis, of Milwaukee, and Caldwell & Burns, of Sioux Falls, S. D., for respondent.

OWEN, J.

This action is brought to recover on a life insurance policy issued by the defendant upon the life of Godfrey H. Egger in which the plaintiff, his wife, is designated the beneficiary. At the time of the issuance of the policy and up to the month of June, 1921, Godfrey H. Egger and the plaintiff lived together as husband and wife on a farm near the city of Sioux Falls, S. D., with seven children, the oldest then being seventeen years of age and the youngest three years of age. In the early part of June, 1921, the exact date not appearing, Godfrey H. Egger left the farm, and has not been seen or heard of since, except that, a few days after leaving, his wife received a letter from him stating that he was going to Elk Point, S. D., on a land deal, and would not be home for two or three days. A few days after she received another letter from him stating he was never coming home, and that he was going to London, England, and offering some advice with reference to the disposition of their property. There were inclosures in this letter addressed to two of the children, enjoining them to be good, giving them his blessing, and expressing the hope that some day they would meet in eternity. While it appears that his financial condition was much involved, it does not appear that he was a fugitive from justice. Before going, he executed conveyances in which he transferred all of his property to his wife and left them in his lock box at the bank. Since the receipt of the above letters he has not been heard from by any of the members of his family, his friends or relatives.

The case was tried before the court. Findings of fact and conclusions of law were filed, in which it was found that Godfrey H. Egger was dead at the time of the commencement of this action and judgment rendered in favor of the plaintiff.

The appellant contends that the judgment should be reversed because the record furnishes no basis for the finding that Godfrey H. Egger was dead at the time of the commencement of this action. The respondent relies upon the case of Ewing v. Metropolitan Life Insurance Company, 191 Wis. 299, 210 N. W. 819, 820, in which case the court applied the rule stated in 1 Greenleaf, Evidence, § 41, that: “After the lapse of seven years without intelligence concerning the person, the presumption of life ceases, and the burden of proof is devolved upon the other party. * * * It is sufficient, if it appears that he has been absent for seven years from the particular state of his residence without having been heard from.” That case furnishes some justification for the contention that mere absence from home without tidings for a period of seven years gives rise to a conclusive presumption of death no matter what the circumstances attending the leaving. The question, however, was again before the court in Hansen v. Central Verein, 198 Wis. 140, 223 N. W. 571, 64 A. L. R. 1284. The contention upon the facts involved in that case, that the absentee should be held as a matter of law to be dead because his family had not heard from him for more than seven years, was a challenge to reason and common sense. The absentee had deserted his family, and he was under sentence for abandonment as the result of a prosecution instituted by his own family. It seemed unlikely that he would have written to them under the circumstances, and a presumption of his death because his family had not heard from him for a period of seven years rested upon rather frail support in reason. The authorities were again reviewed, and, while it was found that the rule as stated by Greenleaf had been early adopted and consistently followed in the decisions of this court, the further fact was disclosed that this court had never been called upon to say whether the presumption obtained in cases where the absentee left under circumstances which would negative the existence of the usual and natural human instinct to communicate with one's family until the decision in the Ewing Case, where the rule as stated by Greenleaf and often quoted by this court was followed on the theory of stare decisis and without the close consideration that was accorded to the question in Hansen v. Central Verein, 198 Wis. 140, 223 N. W. 571, 64 A. L. R. 1284.

As a result of our deliberations in connection with the Hansen Case, we not only became convinced that the statement made by Greenleaf that the presumption of life ceases after the lapse of seven years without intelligence from the absent one has no foundation either in reason or authority, but that it is doubtful whether Greenleaf intended the language used by him to be a careful and inclusive statement of the rule, as in his footnote to the statement he quotes from Stephen's Digest, Evidence, art. 99, as follows: “A person shown not to have been heard from for seven years by those, if any, who if he had been alive would naturally have heard from him, is presumed to be dead, unless the circumstances of the case are such as to account for his not having been heard of without assuming his death.” This is quite a different rule from the one stated by Greenleaf. It requires as a premise the existence of those who would naturally have heard from him if he had been alive; also the absence of circumstances to account for his not having been heard from without assuming his death. As stated by Stephen, the rule has the support of reason; as stated by Greenleaf, it does not.

A presumption is variously defined as “a deduction which the law expressly directs to be made from particular facts,” and as “consequences which the law or the judge draws from a known fact to a fact unknown;” or “an inference as to the existence of a fact not actually known, arising from its usual connection with another which is known;” or “a rule of law that courts and judges shall draw a particular inference from particular facts, or from particular evidence, unless and until the truth of the inference is disproved.” Jones, Commentaries on Evidence (Horwitz) § 9. So the law says that, because there is an instinct implanted within the human breast which urges one who is absent from his home or family to communicate with them, his absence from home for a period of seven years without such communication raises a presumption of death. This...