Metro. Life Ins. Co. v. Lyons

• Decision Date: 31 May 1912
• Docket Number: No. 7,654.,7,654.
• Citation: 50 Ind.App. 534,98 N.E. 824
• Parties: METROPOLITAN LIFE INS. CO. v. LYONS.
• Court: Indiana Appellate Court

50 Ind.App. 534

98 N.E. 824

METROPOLITAN LIFE INS. CO.

v.LYONS.

No. 7,654.

Appellate Court of Indiana, Division No. 2.

May 31, 1912.

Appeal from Superior Court, Marion County; Clarence E. Weir, Judge.

Action by Catherine Lyons against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.W. H. H. Miller, C. C. Shirley, and Samuel D. Miller, for appellant. Thomas D. McGee, Edward D. Reardon, and James H. Drew, for appellee.

LAIRY, J.

Appellee recovered a judgment on a policy of insurance issued by appellant upon the life of Michael Broderick. The complaint was in two paragraphs, and the only substantial difference between them is that the first paragraph avers that Michael Broderick died on or about the 1st day of July, 1903, while the second paragraph does not allege the death of Broderick, but avers that, “on or about the - day of August, 1901, the said Broderick left the city of Indianapolis and went to the city of St. Louis in the state of Missouri; that on or about the - of January, 1903, the said Broderick left his usual place of residence and went to parts unknown and has absented himself from his usual place of residence ever since for a space of more than five years; and that he has not been heard of or seen by any one since.”

[1] The only error assigned is the action of the trial court in overruling appellant's motion for a new trial; and the only questions presented by the brief of appellant are that the decision of the court is not sustained by sufficient evidence, and that the decision of the court is contrary to law.

To sustain the first paragraph of complaint, the evidence must prove as a fact that the assured was dead before the commencement of the action; but to sustain the second paragraph, it was not necessary to prove that such assured was in fact dead. Evidence showing that the assured had absented himself from his usual place of residence and gone to parts unknown for a period of five years would be sufficient to sustain the allegations of the second paragraph, provided the facts attending such disappearances and absence were such as to give rise to the presumption of death as provided by sections 2747 and 2748, Burns' Annotated Statutes 1908.

Even though it be conceded that the evidence is sufficient to sustain every material allegation of the second paragraph of complaint, a verdict resting upon that paragraph could not be sustained for the reason that such a verdict is contrary to law. This court has recently held that the sections of statute to which we have just referred relate exclusively to the settlement of the estates of absentees, and do not apply to a case such as the one we are now considering. Connecticut Mut. Life Ins. Co. v. King, 93 N. E. 1046.

[2] At common law a person was presumed to be living for seven years after his disappearance, and a presumption of death arose only from an unexplained absence, for that length of time. It was held, in the case just cited, that the statutes under consideration do not change the common law in this regard, except in so far as the settlement of the estates of such absentees is concerned. In this case, therefore, proof of the unexplained absence of the assured for five years would not be sufficient to authorize a presumption of death under the statutes relied upon, and a finding in favor of the plaintiff upon the second paragraph of complaint is contrary to law.

The only other question is the sufficiency of the evidence to sustain the decision upon the first paragraph of complaint. If the evidence is sufficient to authorize the court to find as a fact that Michael Broderick was dead before the commencement of the action, or if the facts proven were sufficient to warrant an inference on such fact, then the decision can be sustained upon this paragraph.

[3] Where a person is shown to have been alive at a particular time, the presumption of life continues, and the burden of proving that he is dead rests upon the party asserting such fact. If the person alleged to be dead has been absent from his home for seven years, a presumption of death may arise; but proof of absence alone will not give rise to this presumption. If, in addition to the absence of such person for the required time, it is shown that he left for a temporary purposeof business or pleasure, and that he had not returned, and that those most likely to hear from him have received no word or tidings from him, the presumption of death arises, after an absence of seven years. Thomas v. Thomas, 16 Neb. 553, 20 N. W. 846;Brown v. Jewett, 18 N. H. 230.

If it is known, however, that he established a fixed residence abroad, proof that his family and friends have heard nothing from him for seven years will not be sufficient to establish the presumption of his death. In addition to this fact, it must be shown that due inquiry was made at the place where he had established such residence, and that no tidings of him could be obtained. Bailey v. Bailey, 36 Mich. 181; Wentworth v. Wentworth, 71 Me. 74.

[4] In some cases it becomes material to prove the death of such an absentee at some particular time within the seven years, or to prove the fact that he died before the presumption would arise from absence. In such cases it is necessary to prove his death as a fact, and when this cannot be done by direct evidence, it may be shown by proof of circumstances from which such death may be rightly and reasonably inferred. A court or jury in such a case is not warranted in finding death as a fact from facts and circumstances in evidence which would be sufficient only to create a presumption of death after the lapse of seven years; but additional facts and circumstances may be shown which will warrant such a finding. Some authorities have held that, in order to justify a finding of the death of an absent person, it must appear that when last seen or heard from he was in a situation of particular peril calculated to shorten or destroy life.

In Eagle's Case, 3 Abb. Prac. (N. Y.) 218, it was said that, if it was attempted to apply the presumption short of seven years, special circumstances would necessarily have to be proved. As, for example, that, at last accounts, the person was dangerously ill, or in a weak state of health, was exposed to great perils of disease or accident; that he embarked on a vessel which has not since been heard from, though the length of the usual voyage has long since elapsed. In all such cases the circumstances are sufficient to warrant the submission of the question of the fact of death to the determination of the court or jury trying such issue.

There are cases, however, which hold that circumstances other than that of particular peril calculated to destroy life may be sufficient to justify the inference of death. Tisdale v. Conn. Mut. Life, etc., Co., 26 Iowa, 170, 96 Am. Dec. 136; John Hancock, etc., Co. v. Moore, 34 Mich. 42;Supreme Tent, etc., v. Ethridge, 43 Ind. App. 475, 87 N. E. 1049;Lancaster v. Washington Life, etc., Co., 62 Mo. 121;Fidelity Ass'n v. Mettler, 185 U. S. 308, 22 Sup. Ct. 662, 46 L. Ed. 922.

The case of Tisdale v. Conn. Mut. Life, etc., Co., supra, is a leading case upon this point. The facts in that case, as stated in the opinion, are that the party on whose life the policy was issued was a married man about 30 years of age, of exemplary habits, excellent character, of fair business prospects, respectably connected, and of the most happy domestic relations. He had the fullest confidence of his friends and the entire affections of his wife, and was living in apparent happiness, with no apparent cause of discontent with his conditions which would have influenced him to break the domestic and social ties which bound him so pleasantly to his home. Visiting Chicago on business, he was last seen by an acquaintance at the corner of Lake and Clarke streets in that city about 3 o'clock p. m. of that day. No trace of him was afterward discovered, though his friends made every effort to find him and ascertain the cause of his mysterious disappearance. A large reward was offered through the newspapers for information that would lead to his discovery, either dead or in life. The detective police were employed to search for him without results. No tidings have been received of him, and not the faintest trace of the cause or manner of his disappearance has been discovered. He gave no intimation to any one of an intent to absent himself, and the latest declaration of his intentions was to the effect that he expected to leave Chicago, the day of his disappearance, to join his wife at Dubuque. He owed no debts amounting to any considerable sum, and had made payment of some small ones about the day of his disappearance. His valise, containing clothing and other articles commonly carried by travelers, was found at his hotel. His bill there was unpaid. It was held by the Supreme Court, in reversing the trial court, in that case that these facts were sufficient to warrant an inference of death. The court said, in part: “Any facts or circumstances relating to the character, habits, conditions, affections, attachments, prosperity, and objects in life, which usually control the conduct of men, and are the motives of their actions, are competent evidence from which may be inferred the death of one absent and unheard from, whatever has been the duration of such absence. A rule excluding such evidence would ignore the motives which prompt human actions, and forbid inquiry into them in order to explain the conduct of men.”

We quite agree with the rule of law announced in this, and the rule has been adopted by this court and applied in the case of Supreme Tent, etc., v. Ethridge, supra; but the rule is not applicable to the state of facts disclosed by the evidence in this case.

[5] Michael Broderick, the assured in this case, was an unmarried man at the time he left Indianapolis in the spring or early summer of 1...