Gantt v. American Nat. Ins. Co.

• Decision Date: 25 July 1931
• Docket Number: 8002.
• Parties: GANTT v. AMERICAN NAT. INS. CO.
• Court: Georgia Supreme Court

160 S.E. 345

173 Ga. 323

GANTT v. AMERICAN NAT. INS. CO.

No. 8002.

Supreme Court of Georgia

July 25, 1931

Motion to Rehear Denied September 17, 1931.

Syllabus by the Court.

Proof of person's absence for seven years from accustomed abode, unheard from, raises presumption of death at end of seven-year period (Pen. Code 1910, § 1016; Civ. Code 1910, § 5740).

The presumption arising from seven years' absence of a person from his accustomed place of abode, unheard from, raises not only a presumption of death, but also a presumption of death at the end of the seven-year period, in the absence of proof to the contrary.

Certiorari from Court of Appeals.

Action by Dora Gantt against the American National Insurance Company. Judgment for defendant was affirmed by the Court of Appeals (41 Ga.App. 627, 154 S.E. 213), and plaintiff brings certiorari.

Judgment of Court of Appeals reversed, and case remanded.

HILL J., and BECK, P.J., dissenting.

Winfield P. Jones, of Atlanta, for plaintiff.

R. A Edmondson, Jr., and Tye, Thomson & Tye, all of Atlanta, for defendant.

HINES J.

This case is in this court upon the grant of a certiorari to review the decision of the Court of Appeals in Gantt v American National Life Insurance Co., 41 Ga.App. 627, 154 S.E. 213. The Court of Appeals held that the presumption of death, arising where persons are away from their usual places of abode and have not been heard of for seven years, relates only to the fact of death, and that whenever the time of death is material in any case, it must be established by distinct proof, and cannot be established by such presumption. This principle had been previously announced by the Court of Appeals in Ingram v. Metropolitan Life Insurance Co., 37 Ga.App. 206, 139 S.E. 363; but the latter decision was not referred to in the decision in the case which we now have under review. For convenience of reference we designate this principle as English doctrine.

There is much conflict among the authorities upon the question whether the presumption of death from seven years' absence raises a presumption of the death at the end of the seven-year period. Many cases hold that the presumption arising from seven years' absence of a party from his accustomed place of abode, unheard from, raises a presumption of death only and not of the time of death, the latter of which must be determined by the facts and circumstances of each particular case. It has been stated that this was the English rule and that that rule is sanctioned by the weight of authority in this country. 17 C.J. 1174, § 18 j, and cases cited in note 3. The reason for this rule was stated by Lord Denman, C.J., thus: "Now, when nothing is heard of a person for seven years, it is obviously a matter of complete uncertainty at what point of time in those seven years he died; of all the points of time, the last day is the most improbable and most inconsistent with the ground of presuming the fact of death. That presumption arises from the great lapse of time since the party has been heard of; because it is considered extraordinary if he was alive that he should not be heard of. In other words, it is presumed that his not being heard of has been occasioned by his death, which presumption arises from the considerable time that has elapsed. If you assume that he was alive on the last day but one of the seven years, then there is nothing extraordinary in his not having been heard of on the last day; and the previous extraordinary lapse of time, during which he was not heard of, has become immaterial by reason of the assumption that he was living so lately. The presumption of the fact of death, seems therefore, to lead to the conclusion that the death took place some considerable time before the expiration of the seven years." Nepean v. Doe, 2 M. & W. 895, 913, 150 Eng. Rep. (Reprint) 1021, 8 E. R. C. 512. On the contrary, there are numerous cases which hold that in the absence of facts or circumstances to quicken the time, death is presumed to have occurred at the expiration of the seven years. Moffitt v. Varden, 5 Cranch, C. C. 658, Fed. Cas. No. 9,689; Montgomery v. Bevans, 1 Sawy. 653, Fed. Cas. No. 9,735; Ashbury v. Sanders, 8 Cal. 62, 68 Am.Dec. 300; Burrv. Sim, 4 Whart. (Pa.) 150, 33 Am.Dec. 50; Crawford v. Elliott, 6 Del. (1 Houst.) 465; Whiting v. Nicholl, 46 Ill. 230, 92 Am.Dec. 248; Johnson v. Johnson, 114 Ill. 611, 3 N.E. 232, 55 Am.Rep. 883; Reedy v. Millizen, 155 Ill. 636, 40 N.E. 1028; Policemen's Benevolent Ass'n v. Ryce, 213 Ill. 9, 72 N.E. 764, 104 Am.St.Rep. 190; Donovan v. Major, 253 Ill. 179, 97 N.E. 231; Connecticut Mutual Life Ins. Co. v. King, 47 Ind.App. 587, 93 N.E. 1046; State v. Henke, 58 Iowa 457, 12 N.W. 477; Spurr v. Trimble, 1 A. K. Marsh. (Ky.) 278; Schaub v. Griffin, 84 Md. 557, 36 A. 443; Newman v. Jenkins, 10 Pick. (Mass.) 515; Bailey v. Bailey, 36 Mich. 181; Chapman v. Kullman, 191 Mo. 237, 89 S.W. 924; Kauz v. Great Council, 13 Mo.App. 341; Smith v. Knowlton, 11 N.H. 191; Connor v. New York Life Ins. Co., 179 A.D. 596, 166 N.Y.S. 985; In re Freeman, 227 Pa. 154, 75 A. 1063; Craig v. Craig, Bailey, Eq. (8 S.C. Eq.) 102. For convenience of reference we denominate this the American doctrine.

This principle is based upon the proposition that when a thing is shown to exist, its continuance is presumed until the contrary is shown or a conflicting presumption arises. Unless it is shown that death occurred prior to the expiration of the seven years' absence, or some conflicting presumption arises from the facts proved, which would overcome the presumption of the continuance of life, the presumption of life would obtain until the full expiration of the period, when the contrary presumption of death, from the continued absence, would arise. In the absence of controverting facts, it will be presumed that life continued during the entire period. Reedy v. Millizen, supra. The presumption of the duration of life, with respect to the persons of whom no account can be given, ends at the expiration of seven years from the time when they were last known to be living. Bailey v. Bailey, supra; Smith v. Knowlton, supra. Death is not presumed to have occurred until the expiration of the seven years, although it may be shown that death had occurred before the expiration of the seven years. Burr v. Sim, supra. In this state there is a presumption of law "of continuance of life for seven years." Penal Code, § 1016; Civil Code 1910, § 5740; Hansen v. Owens, 132 Ga. 648, 64 S.E. 800. It necessarily follows from this presumption that, in the absence of controverting facts, the death of a person, whose absence from his usual place of abode for seven years, and of whom nothing has been heard during such period, will be taken to have occurred at the end of such period. Otherwise the presumption of continuance of life, which is declared to exist under the above sections of our Codes, would be meaningless. In one of the earliest cases decided by this court it was held that, in the absence of facts or circumstances evidencing the contrary, death will be presumed to have occurred at the expiration of the seven years. In Doe ex dem. Cofer v. Roe, 1 Ga. 538, this court held that where a person goes abroad and is not heard of for a long time, the presumption of the continuance of life ceases at the end of seven years from the period at which he was last heard of. In that case it was necessary to determine when an intestate died. Judge Nisbet said: "The intestate was last known to be living in 1794. In 1801, therefore, seven years from that time, according to Lord Ellenborough, the presumption of his being alive ceases." Under both our Penal and our Civil Code, as we have shown, there is a presumption of law "of continuance of life for seven years." Under these sections the continuance of life is presumed to exist for seven years from the time a person is last heard of, in the absence of proof to the contrary. It is unreasonable to hold that, while the presumption of the continuance of life for seven years exists, at the end of the full period of seven years it will be held that the person died before the expiration of that period. While the presumption that death occurred after the expiration of the seven years is arbitrary, it is adopted as one of necessity. But for this presumption it would be impossible for litigants in many cases to establish the exact dates of death where they are unable to produce proof or to show circumstances tending to show the dates of such deaths. So the law establishes an arbitrary presumption by which the date of death can be shown when proof thereof cannot be obtained. So we are of the opinion that, in the absence of facts or circumstances tending to establish the date of death, death is presumed to have occurred at the expiration of the seven years; the presumption of our law being that life continues for the period of seven years from the date when a person is last known to be in existence. This being so, we reverse the judgment of the Court of Appeals, and remand the case to that court for disposition in accordance with the above ruling.

Judgment reversed.

All the Justices concur, except BECK, P.J., and HILL, J., who dissent, and GILBERT, J., absent.

HILL J. (dissenting).

I cannot concur in the opinion of the majority of the court in reversing the judgment of the Court of Appeals in this case. In my opinion that decision is supported by respectable authority, such as the Supreme Court of the United States and in part by this court, and the decision of the Court of Appeals has been so concisely and logically expressed, and is sustained by such reputable authority, that I quote the decision in full: "Bloodworth, J. This is a suit instituted by the beneficiary of an insurance...