Fleming v. Merchants' Life Ins. Co.
| Decision Date | 16 December 1920 |
| Docket Number | 33545 |
| Parties | NELLIE FLEMING, Appellee, v. MERCHANTS' LIFE INSURANCE COMPANY, Appellant |
| Court | Iowa Supreme Court |
OPINION ON REHEARING JUNE 23, 1922.
Appeal from Polk District Court.--THOMAS GUTHRIE, Judge.
ACTION at law, for the recovery of life insurance. Judgment for the plaintiff, and defendant appeals. Upon the original submission of the cause, an opinion was filed affirming the judgment below. See 180 N.W. 202. A petition for rehearing was granted and resubmitted upon the original record, with further arguments by counsel.
Affirmed.
George E. Brammer, S. E. Knappen, and Lehman, Seevers & Hurlburt for appellant.
Nourse & Nourse, for appellee.
On February 6, 1908, the defendant issued a policy or certificate insuring the life of Michael Fleming. In April 1912, the insurance being still in force, Fleming left home and went to Canada, with the avowed purpose of making a home for himself and family. Soon after reaching Canada, he wrote an affectionate letter to his wife, expressing his purpose of sending for his family as soon as he got settled. The letter was answered in similar spirit by the wife; but at that point Fleming seems to have disappeared, and all efforts of his friends to locate or obtain news of him have been fruitless. The wife, encouraged by the advice of the company's agents and representatives, kept up the payments of the assessments and dues which the company continued to levy until August, 1919, a period of more than seven years after Fleming's disappearance, and then brought this action to recover the indemnity. The defendant plants its defense upon one of its by-laws, which reads as follows:
"Disappearance or long continued absence of the member unheard of shall not be regarded as evidence of death or of any right to recover."
Their argument is that, if this provision is held to be valid, and proof of the long continued absence of Fleming is not to be admitted in evidence for any purpose, then the verdict for the plaintiff is left without sufficient support to sustain it.
If the premises be sound, the argument is, of course, unanswerable. This leads us directly to the heart of the case. Is the quoted by-law a valid enactment, and will it be allowed to control or limit the effect of evidence otherwise admissible under the universally recognized rules of the law of evidence? Counsel for appellant frankly accept this issue, and say that the only question involved in this appeal is whether this by-law is valid. Other incidental or collateral questions were broached on the trial, and perhaps given undue prominence in the charge of the court to the jury; but, accepting the proposition of the appellant that the vital question is the validity of the by-law, we shall confine our attention thereto.
I. In final argument on rehearing, appellant's counsel approach the proposition by asking, "If an insurer may except from the hazard death by suicide, or in war, or in a foreign country, why may not presumptive death be excepted?" and then answer their own question by saying that "not a single valid reason can be urged against the exception." This proposition, stated with so much confidence, illustrates a misconception which pervades the entire argument: the notion that to sustain the plaintiff's claim is to permit her to recover for what counsel call "presumptive death" of the insured, as distinguished from his "actual death." But no such distinction exists. The contract does not insure against "presumptive" death, but against actual, physical death--extinction of life; and if the plaintiff has not made a case from which the jury may properly find that Michael Fleming is actually dead, she ought not to recover. The word "presumption" or "presumptive," used in this connection, relates solely to the evidence by which the fact of actual death may be judicially determined. Long continued absence of the insured, unheard of, no matter how protracted, is not death, either presumptive or actual, within the terms of the contract. It is simply a material fact from which, in connection with other pertinent facts and circumstances, the conclusion of actual death may be drawn by the jury. True, the conclusion may be wrong; but this may also happen where the fact of death has been established by evidence of eyewitnesses. The witnesses may lie, or be honestly mistaken, and the insured person may be still alive, in hiding or in prison, or in some hospital for the insane; but the adjudication of death and the judgment for recovery of the indemnity are none the less valid and enforceable simply because of the naked possibility of a fact of which there is no pretense of evidence.
II. The by-law in question is not a simple provision excluding the common-law rule making the fact of seven years' absence, unheard of, presumptive evidence of death. It goes much further than that, and provides that disappearance or long continued absence "shall not be regarded as evidence of death or of any right to recover." There is a world-wide difference between these two propositions. The first does no more than do away with the presumption supposed to arise from the fact, but does not destroy its character as evidence as a pertinent circumstance bearing upon the issue being tried; but the other proposition inhibits the consideration of such fact as evidence at all or for any purpose, in establishing a right of recovery. For example, if the evidence in this or other similar cases had traced the insured person to San Francisco, on the very eve of the destruction of that city by earthquake, or to Johnstown, Pennsylvania, immediately before the great flood swept over that ill-fated city, or to Galveston, Texas, just in time to be exposed to the storm and tidal wave which brought death and destruction to thousands, and thus far the evidence had been clear and satisfactory, it might be said, perhaps, that this alone would not sustain a recovery, for the insured man may have been among the few fortunate survivors; but if that showing should be supplemented by proof that from the date of the disaster he had utterly vanished from the sight and knowledge of living men, and if, though there was no known reason why he should voluntarily abandon home, family, and friends, yet no communication from him, direct or indirect, had ever been received by them, such showing, added to the proved facts already enumerated, is sufficient to establish the fact of his actual death, to a moral certainty. No room for reasonable doubt would remain; and yet, if the appellant be correct, and this by-law be held to control the ruling of the trial court, that vital fact must be excluded, and the widow go out of court empty-handed.
Disappearance or long absence, even if denied the force of presumption of death, may be, and often is, very material evidence. See Tisdale v. Connecticut Mut. L. Ins. Co., 26 Iowa 170. To take away the presumption relieves the defendant of a burden, but does not deny to the plaintiff the benefit of the fact shown, as a circumstance to be considered by the jury. To take away the evidence entirely is to give to the defendant the power to block the wheels of justice, and "makes it practically impossible to make proofs of death" in many cases of undoubted merit. Sovereign Camp v. Robinson, (Tex. Civ. App.) 187 S.W. 215.
It is true that, within certain limitations, parties may enter into any contract and bind themselves by its terms, even though they appear unreasonable to the average mind; but this has respect to their personal relations and dealings with each other in matters concerning the subject of their contract; but it does not include the right to prescribe or control in advance the course of remedial justice, in the event that their contract becomes the subject of litigation. The state has provided courts, to which is confided jurisdiction to try and dispose of the controversies which may be brought before them. Generally speaking, every controversy brought into court involves some one or more disputes of fact; and it is for the court to ascertain, with such reasonable certainty as may be, the truth of these disputes. This is arrived at by hearing and considering evidence. The experience of centuries of lawmaking and law administration has demonstrated that this is best accomplished by observing and adhering to the rules which collectively constitute the "law of evidence," and by refusing to allow them to be perverted or avoided in the interest of the parties, or either of them. If a plaintiff or defendant goes into court, he must expect to make his case and bring his proof in the manner which is prescribed by the established law of the jurisdiction; and that he may not, in the contract upon which he sues or is sued, prescribe or control the evidence by which the truth of the controversy is to be determined, by suspending application of pertinent rules, may be regarded as well settled. It may be admitted that cases are to be found in which this principle appears to have been overlooked or violated. The only one of our decisions which is open to that suggestion is Roeh v. Business Men's Prot. Assn., 164 Iowa 199, in the discussion of which language is used which is capable of the interpretation counsel place upon it. We have no purpose to question its authority in a case falling strictly within its class, but we are not inclined to extend it so far as would be required to cover the case at bar. The Roeh case should, however, be read in the light of the more recent case of Ellis v. Interstate B. M. A. Assn., 183 Iowa 1279, 168 N.W. 212.
For a statement of the general basic principle, the language of the distinguished jurist Chief Justice Shaw, of Massachusetts,...
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