Lemire v. Nat'l Life Ass'n

• Decision Date: 15 December 1922
• Docket Number: No. 34919.,34919.
• Citation: 194 Iowa 1245,191 N.W. 67
• Parties: LEMIRE v. NATIONAL LIFE ASS'N.
• Court: Iowa Supreme Court

194 Iowa 1245

191 N.W. 67

LEMIRE

v.NATIONAL LIFE ASS'N.

No. 34919.

Supreme Court of Iowa.

Dec. 15, 1922.

Appeal from District Court, Polk County; Jos. E. Meyer, Judge.

Action by plaintiff against appellant on a policy of insurance on the life of appellee's husband. The right to recover is predicated on the presumption of death by reason of the absence of the insured for seven years. Cause tried to a jury, with verdict for plaintiff in the sum of $2,000. From the judgment entered, the defendant Insurance Company appeals. Reversed.James P. Hewitt and Ole O. Roe, both of Des Moines, for appellant.

Parsons & Mills, of Des Moines, for appellee.

DE GRAFF, J.

This action was instituted February 18, 1921, to recover upon a policy of insurance issued by the defendant to Frank C. Lemire August 1, 1908, for $2,000, payable at his death to his wife, Emma Lemire, plaintiff herein. The assessments were paid either by the insured or the beneficiary to November 5, 1920, when “plaintiff ceased to pay such premiums or assessments in the belief that her husband was dead,” as alleged in her petition.

The insured, for cause known only to himself, left his home at Chicago Heights, Ill., on the 4th day of November, 1913. Plaintiff's petition contains the following material allegations:

“That no tidings have even been received by plaintiff or by any member of her family or his family or by any other person, friend, or acquaintance since the 4th day of November, 1913, as to his whereabouts, and that during the period of seven years which have elapsed since that date the said Frank C. Lemire has not been seen alive or dead by any person, so far as plaintiff, after long and diligent effort, has been able to ascertain.”

There is no claim nor does the evidence establish the actual death of Frank C. Lemire. Therefore this opinion concerns itself, not with the sufficiency of evidence to authorize a finding of the fact of death, but with the question whether a presumption of death has arisen under the facts and circumstances of this case.

[1] The inference of death to be derived from unexplained absence is, at most, only a presumption, and the mere failure to hear from an absent person for seven years is not sufficient in itself to raise the presumption.

A presumption is a conclusion reached by means of the weight of proven circumstances, and before it can exist the circumstances which attend and are essential to establish the presumption must be in evidence. The controlling question is: Are the facts and circumstances established by the proofs sufficient to end the presumption of life and start the presumption of death?

[2] The period of seven years was originally fixed in analogy to the limit defined by the English statutes concerning bigamy and leases for lives, but, considering the area of our country and the migratory character of its people, it may well be said that the presumption has less force here than in the country of its origin especially at the time of its origin. It is a presumption therefore that should require proof of its essential elements and should not be permitted to be too easily or readily established. The burden is upon the plaintiff to establish by a fair preponderance the essentials inhering in the presumption, and it must be made to affirmatively appear: (1) That the person has been absent from his home or usual place of abode for seven years; (2) that no intelligence has been received concerning him during said period by those persons who would naturally or likely have heard of or from him, if living; (3) that the person invoking the presumption has made diligent inquiry from relatives and others likely to know to ascertain the whereabouts of the absentee. State v. Henke, 58 Iowa, 457, 12 N. W. 477; Wentworth v. Wentworth, 71 Me. 72; Marquet v. Ætna Life Ins. Co., 128 Tenn. 213, 159 S. W. 733, L. R. A. 1915B, 749, Ann. Cas. 1915B, 677;Hansen v. Owens, 132 Ga. 648, 64 S. E. 800;Hitz v. Ahlgren, 170 Ill. 60, 48 N. E. 1068;Hancock, Adm'r, v. American Life Ins. Co., 62 Mo. 26;Reedy v. Millizen, 155 Ill. 636, 40 N. E. 1028.

Is the evidence in the instant case sufficient to raise the presumption that the insured was dead at the time plaintiff commenced her action? What do the facts disclose?

At the time Lemire left his domicile in Illinois he was 44 years of age and enjoying fairly good health. For a number of years he had taken part in the local politics in his home town and had been the stationary engineer at the waterworks plant until about 6 months before he left. He then engaged in business for himself as a consulting engineer, but in this venture he was not successful. He possessed no property. His family life seems to have been pleasant. On the day following his leaving home his wife received a card from him postmarked “Chicago, November 4, 7 P. M. 1913,” in which he stated:

“Am just leaving for St. Joe, Michigan. May load machinery if all right and may be few days.”

This card was signed “Frank.” It also appears that he called some one in his office and asked him to get word to his wife that he would not be back that night. He never did return to his home. Subsequently to his leaving he was seen and positively identified by two former residents of Chicago Heights, where he had lived for nearly 20 years.

A few days prior to December 16, 1913, one J. C. Mote, of Houston, Tex., saw Lemire in Houston and talked with him. Mote had formerly been the mayor of Chicago Heights, had known Lemire for 18 years, and it was during Mote's administration that Lemire was engineer of the waterworks. We quote the following from the record:

“Q. Did you have any difficulty in recognizing him as being Frank C. Lemire at that time? A. Not a particle. Q. Are you able to state to the jury at this time positively that it was Frank C. Lemire that you saw and at that time? A. Yes, sir; absolutely. I walked up to him and extended my hand. He reluctantly gave me his hand. I asked him how long he had been in the city, and he appeared very much disturbed. His remark to me was, ‘My name is Arnold.’ I said, ‘For twenty years previous it has not been Arnold,’ and he kind of sidled off from me, looked over his shoulder as he sidled away, and walked on.”

Upon redirect examination Mote testified:

“Mr....