Fink v. Prudential Insurance Co.

• Decision Date: 23 May 1939
• Citation: 90 P.2d 762,162 Or. 37
• Parties: FINK <I>v.</I> PRUDENTIAL INSURANCE CO. OF AMERICA
• Court: Oregon Supreme Court

162 Or. 37

90 P.2d 762

FINKv.

PRUDENTIAL INSURANCE CO. OF AMERICA

Supreme Court of Oregon.

Argued February 10, 1939.

Reversed May 23, 1939.

Rehearing denied June 13, 1939.

Appeal and error — Conflicting evidence

1. On appeal from judgment on verdict for plaintiff, the supreme court may not weigh conflicting evidence nor resolve issues for defendant if plaintiff's case is supported by competent, substantial evidence, but if no substantial evidence furnishes a fact essential to plaintiff's recovery, the court must so declare and pronounce the right result.

Evidence — Clergyman

2. The testimony of clergyman, because of his character and lack of bias, was entitled to great weight.

Evidence — Spontaneous declarations

3. Remarks escaping unwittingly under stress of emotion possess uncommon value as evidence.

Death — Presumption of death

4. In action on life policies based on presumption of death arising from insured's alleged disappearance, where insured was living on day following his departure from home and had life expectancy between 28 and 29 years at time of departure, conclusion was warranted that insured was still alive when action was begun eight years after disappearance unless record furnished sufficient reason for believing the contrary.

Death — Insurance — Evidence — Presumptions

5. In action on life policies based on presumption of death arising from insured's alleged disappearance, where insured, whose life expectancy was between 28 and 29 years, was living on day following his departure from home and action was begun eight years after disappearance, burden rested on beneficiary to overcome presumption of life and to furnish evidence from which death might be inferred.

Death — Absence for seven years

6. Disputable presumption enumerated in statute that one not heard from in seven years is dead was not intended to create new rule concerning effect of seven years' unexplained absence, but was merely intended to state the existing law.

Death — Absence for seven years

7. The rule permitting inference of death from seven years' unexplained absence is a rule of necessity.

Death — Absence for seven years

8. When an individual with a happy home disappears under circumstances indicating he left involuntarily, when family and all others who would naturally hear from him receive no word, when search and inquiry immediately undertaken and pursued with reasonable diligence in all places likely to yield results fail to produce anything showing him to be alive, when search is renewed whenever new clue is obtained which reason suggests ought to be investigated, and when absence and silence are incapable of any reasonable explanation other than death, seven years of absence and silence authorize resort to death as most probable explanation.

Death — Evidence — Presumptions

9. In absence of special circumstances such as old age, search and inquiry, promptly instituted and prosecuted with reasonable diligence, are requisites to the presumption of death rule.

Death — Evidence

10. Death will not be presumed from absence and lack of tidings which can be explained without belief of death.

Evidence — Presumptions — Self-preservation

11. Presumptions of suicide are not indulged, but, to the contrary, presumption is that all possess instinct of self-preservation and endeavor to avoid danger.

Insurance — Unexplained absence

12. Generally, the extent to which a search should be conducted as basis for presumption of death from unexplained absence is for the jury.

Death — Evidence — Presumptions

13. In action on life policies based on alleged presumption of death arising from insured's disappearance, where insured when he disappeared was only 39 years of age and had a life expectancy of many years, and evidence indicated that insured had planned a break from wife and family and six months after disappearance warrant was issued for insured's arrest so that possibility of insured's making his whereabouts known was unlikely and wife did not make inquiries among neighbors, friends and fellow employees of insured, a presumption of death was not authorized though insured was allegedly ill at time of departure.

                  Presumption of death as evidence, note, 115 A.L.R. 404. See
                also, 16 Am. Jur. 19
                  17 C.J. Death, § 4
                

Department 1.

Appeal from Circuit Court, Multnomah County.

JOHN P. WINTER, Judge.

Action by Christina Fink, now known as Christina Young, against the Prudential Insurance Company of America on two policies of life insurance. Judgment for plaintiff, and defendant appeals.

REVERSED. REHEARING DENIED.

U.T. DeMartini, of Portland (Brice & DeMartini, of Portland, on the brief), for appellant.

Zanley Galton, of Portland (Goldstein & Galton, of Portland, on the brief), for respondent.

ROSSMAN, J.

This is an appeal by the defendant from a judgment of the circuit court, based upon the verdict of a jury, and entered in an action which was predicated upon two policies of insurance issued by the defendant each of which designated Conrad Fink as the insured and the plaintiff, who was then Fink's wife, as beneficiary. Although the plaintiff contends that the insured was dead at the time the action was instituted, she presented no direct proof of death, but relied upon a presumption or an inference arising from the insured's alleged disappearance. About five years after the disappearance she obtained a divorce from Fink and later married one Frank Young.

One of the policies is in the denomination of $1,000 and was issued June 26, 1919; the other is in the denomination of $500 and was issued May 21, 1928, about one year before the alleged disappearance. The premium payment due upon the $1,000 policy June 26, 1929, was not paid nor were any subsequent premiums discharged, but that policy was continued in effect, under its extended insurance provision, until August 2, 1930; hence, it was necessary to prove that Fink died not later than August 1, 1930. The $500 policy had not expired when the complaint was filed.

The plaintiff claims that Fink disappeared June 29, 1929, and that since that day his whereabouts have not been known. He was born in Russia February 7, 1890, and was, therefore, thirty-nine years old at the time of his alleged disappearance. This action was instituted May 22, 1937, almost eight years after the purported disappearance. The plaintiff claims that the circumstances warrant a conclusion that Fink died immediately subsequent to June 29, 1929, or, in any event, prior to August 2, 1930. The defendant insists that the circumstances do not indicate that Fink was dead when the complaint was filed. One of its witnesses swore that he saw Fink three times in 1932, and another testified that she saw Fink in the years 1932 and 1934. The defendant also contends that virtually no effort was made by the plaintiff to gain information concerning Fink after his departure from his home.

At the conclusion of all of the evidence the plaintiff, over the defendant's objection, was permitted to amend her complaint. Next, the defendant moved for a directed verdict, which motion was denied. After the verdict had been received the defendant moved for judgment notwithstanding the verdict. This motion was also denied. The three rulings just mentioned are the bases of the three assignments of error.

We shall now give a summary of that part of the evidence which bears upon the motion for a directed verdict. Since we believe that the motion should have been allowed, we deem it proper to make the review somewhat more extensive than economy of space might suggest.

When the plaintiff was nineteen years of age and Fink was twenty-two they were married in their native Russia. Both spoke the German language. Two months later they sailed for America. In their trek across their adopted land Fink worked at various occupations all of a manual nature. In 1919 the two arrived in Portland where they made their home in a German-Russian neighborhood. In Portland Fink, after having pursued several employments, worked for four or five years in a slaughterhouse. A few months before June of 1929 he left the slaughterhouse and became a night fireman in a Portland sawmill. While working there he left his home at 11:15 p.m. and returned the next morning about 9:00. Saturday, June 29, 1929, he left home at the usual hour but has never returned to it.

The plaintiff contends that Fink was not well at the time of his departure and that this fact, together with the circumstance that the day after his leaving two relatives who were on the same train with him could not find him when they afterwards sought him, authorizes a conclusion that some dire fate must have overtaken him; at any rate, that his death occurred before the expiration of the $1,000 policy August 2, 1930. The following is a review of the evidence presented upon that issue. In March or April, 1927, while Fink was working in the slaughterhouse he was accidentally struck on the head. None of the witnesses saw the accident, but one of them, Frank Portello, testified: "When he was hit it didn't completely knock him out, but he couldn't finish his work. He said he got sick to his stomach and went down to the boiler room. He said, `Well, here I am.' He said, `I don't know what happened.'" The witness added that Fink bled from his head, nose and mouth, and that the injury left him with a scar "about an inch long". Portello thought that Fink was in a hospital about eight or ten days before he returned to the plant. Prior to the accident according to the witness, Fink "was always a very busy man, a good workman, and seemed to be a homelike man * * * always happy, always see him with a smile on his face," but after the accident "there was a radical change all over him. * * * He always complained of serious headaches, and he ran around there — boy, he didn't know where he was at half the time, and I was kind of afraid that something might happen during his work where he was...