McLaughlin v. Sovereign Camp, Woodmen of World
| Decision Date | 16 October 1914 |
| Docket Number | 17,710 |
| Citation | 149 N.W. 112,97 Neb. 71 |
| Parties | BRIDGET MCLAUGHLIN, APPELLEE, v. SOVEREIGN CAMP, WOODMEN OF THE WORLD, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Holt county: WILLIAM H. WESTOVER JUDGE. Affirmed.
AFFIRMED.
Brome & Brome and A. H. Burnett, for appellant.
M. F Harrington, contra.
This is an action on a fraternal beneficiary certificate for $ 1,000 issued by defendant to James W. McLaughlin. Plaintiff is the mother of assured, and is named in the certificate or insurance contract as beneficiary. In the petition it is alleged that assured is dead, and that he and plaintiff performed all of the conditions of the contract on their part. These allegations and the liability of defendant are denied in its answer. From judgment in favor of plaintiff for the full amount of her claim, defendant has appealed.
1. There is no direct evidence that assured is dead. To establish that fact and the resulting liability of defendant, plaintiff relied on proof of assured's absence without tidings for more than seven years. The beneficiary certificate became effective as an insurance contract May 2, 1900. At that time assured was an unmarried man, about 24 years of age, and resided with his father and mother and other members of their family at O'Neill, Nebraska. Shortly afterwards he went to Park City, Utah, and worked in a mine. While there he wrote and posted family letters regularly and sent money to his mother. Early in 1904 he left Utah and went to Lima, Peru. His father and mother received from him a letter dated at that place March 30, 1904, in which he said he had changed his residence because he thought he could do better down there, and stating: "I am going up to a place called Cerro de Pasco, so I cannot give you any address with letter, but will write you when I get settled." A companion, who went with him to Lima, but who promptly returned to Park City, wrote to assured's father as follows: Assured has never since been heard of.
The first question is whether the evidence entirely fails to establish the presumption of death of the insured. The findings of the trial court in actions at law, like the verdict of a jury, will not be disturbed, if the evidence is substantially conflicting. The rule now thoroughly established and always acted upon is that the verdict of the jury or findings of the court in jury cases will be sustained by this court upon appeal, unless upon the whole record found to be clearly wrong. Other forms of expression sometimes adopted in opinions are not intended by the court to vary or modify the rule now so well established and uniformly acted upon.
The best authorities, with substantial unanimity, hold that whether seven years' continued absence from one's usual place of residence will raise the presumption of death must depend largely upon the circumstances and conditions of each particular case. Upon this point the supreme court of Kansas, which has perhaps required as strict proof to raise this presumption as has any court in this country, said: "It is conceived, however, that the character of the inquiry, the persons of whom it must be made, and the place or places where it must be made are all to be determined by the circumstances of the case." Modern Woodmen of America v. Gerdom, 72 Kan. 391, 82 P. 1100. In that case and in Renard v. Bennett, 76 Kan. 848, 93 P. 261, the court appears to adopt the rule that, when a young unmarried man leaves the home of his parents and goes from place to place for some time, corresponding regularly with his parents, and suddenly ceases corresponding, and nothing is heard from him for more than seven years, inquiry must be made at all places and of all people where there was any probability that information might be obtained. But, in general, the courts of this country have held, as did the supreme court of Wisconsin, that it "does not require proof of diligent search and inquiry in order to establish the presumption of death when a person has absented himself from his home or place of residence for seven years." Miller v. Sovereign Camp, W. O. W., 140 Wis. 505, 122 N.W. 1126. The supreme court of Minnesota approved this instruction: "If you find from the evidence that on the 17th day of July, 1901, Behlmer (that is, Fred) left his home, wife, and children, and that he has never returned, and that no tidings from him have ever been received by his family, a presumption arises after seven years that he is dead." Behlmer v. Grand Lodge, A. O. U. W., 109 Minn. 305, 123 N.W. 1071; Magness v. Modern Woodmen of America, 146 Iowa 1, 123 N.W. 169; Oziah v. Howard, 149 Iowa 199, 128 N.W. 364.
This question has frequently been before this court, and, so far as its application to the case at bar is concerned, seems to have been definitely settled by our former decisions. In Cox v. Ellsworth, 18 Neb. 664, 26 N.W. 460, it was held: "The death of an absent person may be presumed in less than seven years from the date of the last intelligence from him, from facts and circumstances other than those showing his exposure to danger which probably resulted in his death." In Holdrege v. Livingston, 79 Neb. 238, 112 N.W. 341, it was held: "A presumption of death arises from the continued and unexplained absence of a person from his home or place of residence for seven years, where nothing has been heard from or concerning him during that time by those who, were he living, would naturally hear from him." This seems to be in line with the holdings of the Wisconsin, Minnesota, and Iowa decisions above cited. The evidence in this case was that the assured was a young unmarried man. He had no home or fixed place of residence other than with his family at O'Neill, Nebraska. Soon after he was insured he was employed in Utah, but his sister testified, as quoted in the defendant's brief: "He was home about twice or three times a week." Several years after he was insured he went to Lima, Peru, with a young companion, and, after they had remained there about two weeks, he concluded to go into the mining regions prospecting or to find some occupation. He had been in the habit of writing home to his family once each month during all of this time, and had regularly and monthly sent money to his parents, who were very aged and apparently needed his assistance. When he concluded to go into the mining regions, he wrote a letter to his parents, telling them of his intention, and saying that as soon as he had located he would write and give them his address. This was the last that was ever heard in regard to him. His parents caused letters to be written addressed to him at Lima and also letters addressed to him in care of the mining corporation which he intended to visit, and these letters were returned uncalled for. If he had established a residence in Utah or in some foreign country, it might have been necessary to make further inquiries in such places of residence. His statement in his letter that "you will see by the postmark on this letter that I have changed my place of residence" was plainly not intended as a declaration that he established a residence there, which the evidence shows beyond question was not the fact.
In Thomas v. Thomas, 16 Neb. 553, 20 N.W. 846, it was held that a wife could not rely upon the presumption of the death of her husband because of his absence from her for a period of seven years, when she, after he had left her removed from state to state, establishing new places of...
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