Miller v. Sovereign Camp Woodmen of the World

• Decision Date: 26 October 1909
• Parties: MILLER v. SOVEREIGN CAMP WOODMEN OF THE WORLD.
• Court: Wisconsin Supreme Court

140 Wis. 505

122 N.W. 1126

MILLER

v.SOVEREIGN CAMP WOODMEN OF THE WORLD.

Supreme Court of Wisconsin.

Oct. 26, 1909.

Appeal from Circuit Court, Green County; George Grimm, Judge.

Action by Augusta Miller against the Sovereign Camp Woodmen of the World. From a judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff, as the beneficiary in a benefit certificate issued to her son Otto Miller, brings this action to recover $1,000. To establish the death of the insured, evidence was offered tending to show that at the time the action was begun he had been absent from his home and unheard of for seven years. No evidence was offered by the defendant. The court directed a verdict in favor of plaintiff, and such ruling is assigned as error. Otto Miller was last heard from in 1899. He was then 23 years of age and unmarried. He was a musician and a barber, and had pursued both callings for a livelihood, and had been away from home on and off for several years prior to his disappearance. It appears that he was devoted to his mother, writing to her frequently when he was away, and returning to her home at irregular intervals. The testimony fairly shows that, in so far as the alleged decedent had any home, it was with his mother. In 1899 he was engaged to be married to a young lady at Monroe, where his mother resided. In July, 1899, the plaintiff and Otto went to Salina, Colo., where Mrs. Miller visited some relatives until the following July. It is not entirely clear whether she went to Colorado with the purpose of making it her permanent home, but the inference from the testimony is strong that she did not. Otto did not remain at Salina long, but spent most of his time in Denver and Boulder until December, 1899, at which time he wrote his mother from Denver. Nothing further had been heard from him up to the time of the trial. Some rumors reached plaintiff as to his whereabouts, and numerous letters were written to parties who it was thought might be likely to know of him if he were alive. The plaintiff continued to make the required payments on the benefit certificate for the seven years after the disappearance of her son.Jeffris, Mouat, Smith & Avery (Arthur H. Burnett, of counsel), for appellant.

J. M. Becker, for respondent.

BARNES, J. (after stating the facts as above).

It is contended by the defendant that the evidence offered was insufficient to raise the presumption of death, and that a verdict should have been directed in its favor. If this contention be not well taken, then it is urged that the jury should have been permitted to pass upon the principal issue in the case.

Some of the more modern cases hold that an interested party seeking to establish the death of another may not rely on the absence of such party from his home or place of residence for seven years without being heard from as being sufficient to raise a presumption of death, but, in addition thereto, it must be shown that diligent search and inquiry have been made and all available sources of information exhausted without result before a prima facie case of death is established. Modern Woodmen of America v. Gerdom, 72 Kan. 391, 82 Pac. 1100, 2 L. R. A. (N. S.) 809, and cases cited. If this rule is adopted by this court, the judgment could not be sustained. While a considerable amount of evidence of search and inquiry was offered by plaintiff, and was not contradicted, still different minds might reasonably draw different conclusions as to whether the search was sufficiently diligent, thorough, and exhaustive to meet the requirements of the rule. In such a case the jury rather than the court should draw the inference. The rule stated by Mr. Greenleaf is that: “After the lapse of seven years, without intelligence concerning the person, the presumption of life ceases, and the burden of proof is devolved upon the other party. * * * It is sufficient, if it appears that he has been absent for seven years from the particular state of his residence, without having been heard from.” 1 Greenleaf on Evidence, § 41. Other treatises on the law of evidence state the rule in substantially the same way. Wigmore on Evidence, § 2531; Jones on Evidence (2d Ed.) § 61. Each of the authors named cite an abundance of cases in support of the rule announced. In Cowan v. Lindsay, 30 Wis. 586, this court adopted, without qualification, the rule as laid down in Greenleaf on Evidence, and has reiterated such rule in Whiteley, Adm'r, v. Equitable Life Assurance Society, 72 Wis. 177, 39 N. W. 369, and in Wisconsin Trust Co. v. M. & F. Ins. Co. Bank, 105 Wis. 464, 81 N. W. 642, although it was not necessary to the decision of either of the two cases last cited to do so. Thus it will be seen that the court is firmly committed to the general doctrine which 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. To hold in this case that the home of the plaintiff was not that of her son would be equivalent to holding that where a son has reached his majority, and has made it a practice to work away from home at times, he thereby loses his domicile with his parents, at least in the absence of direct evidence on his part of intention not to change his place of residence.

The plaintiff is a widow 72 years of age. She had six children. One died in 1898 and one...