Modern Woodmen American v. Michelin
| Decision Date | 25 March 1924 |
| Docket Number | Case Number: 12844 |
| Citation | 225 P. 163,101 Okla. 217,1924 OK 357 |
| Parties | MODERN WOODMEN OF AMERICA v. MICHELIN. |
| Court | Oklahoma Supreme Court |
Error from District Court, Tulsa County; Albert C. Hunt, Judge.
Action by Marie L. Michelin against Modern Woodmen of America. Judgment for plaintiff, and defendant brings error. Affirmed.
¶0 1. Insurance -- Proof of Death -- Presumption from Seven Years' Absence.
In this case, the beneficiary in a policy of life insurance brought suit against the insurer, and for proof of the death of the insured relied upon evidence showing that the insured had been missing for a period of seven years and through due inquiry could not be located. The instruction given by the court correctly states the law and reads as follows:
"You are instructed, gentlemen of the jury, that it is a rule of common law that a person shown not to have been heard of for seven years by those, if any, who, if he had been living, would naturally have heard of him, is presumed to be dead, unless the circumstances of the case are such as to account for his not being heard of without assuming his death; and in this connection you are instructed that there must also be evidence of diligent inquiry at the place of the person's last residence in this country and among his relatives and any others who would probably have heard of him if living; and if you find from the evidence in this case that the plaintiff has made diligent inquiry in an effort to locate S. E. J. M., and further find that he had not been heard of within seven years from January 10, 1910, and prior to the filing of this petition herein, then and in that event your verdict should be for the plaintiff for the amount sued for."
2. Appeal and Error -- Questions of Fact--Conclusiveness of Verdict -- Proof of Death of Insured.
In a case where the plaintiff alleges the death of the insured in a policy of life insurance and for proof thereof relies upon evidence showing such insured to have been missing for a period of seven years, it is necessary that the plaintiff show that inquiry concerning the insured has been made in all those places where information is likely to be obtained and of all those persons who in the ordinary course of events would be likely to receive tidings of the party being alive, whether members of his family or not, and generally the inquiry should exhaust all reasonable patent sources of information which the circumstances of the case suggest, but such places, persons, and sources of information are only those which a reasonably prudent person under the same or similar circumstances would deem to be sufficient under the terms of the rule as here stated. Under proper instruction the sufficiency of the search and inquiry is one for the jury, and the jury's determination that same was sufficient will not be disturbed by this court upon appeal, unless by an examination and consideration of all the evidence in the record, we can say, as a matter of law, that the minds of all reasonable men should concur in holding same insufficient under the rule announced.
3. Appeal and Error -- Conclusiveness of Verdict--Rule Stated.
This court has sometimes said that on appeal it will not disturb the verdict of the jury if there is any evidence tending to support the verdict, but that expression must not be given too literal, technical, and strict an interpretation, else it may be given a construction that will be an erroneous statement of the law. In order for the verdict of a jury to stand, there must be in the record such competent evidence that if uncontradicted and unimpeached, will constitute prima facie proof of every fact essential as a matter of law to the establishment of the cause of action or defense upon which the verdict is based.
4. Insurance--Presumption of Death from Long Absence--By-Law Abrogating Rule of Evidence--Invalidity.
Utter v. Insurance Company, 65 Mich. 545, 32 N.W. 812, 8 Am. St. Rep. 913.
5. Same.
That under certain circumstances, a man is presumed to be dead after seven years' absence, is a well-recognized rule of evidence in force in this state. It cannot be abrogated by contract. The provision in the policy of life insurance or in the by-laws of the corporation that said rule shall not be applicable or available in proof of death of the insured as a basis for recovery under said policy is contrary to public policy and void.
6. Same.
In this case, the insurer issued and delivered its benefit certificate to the insured and thereafter adopted a by-law, which, according to the terms of the policy, was binding upon the insured, and reads as follows:
"The disappearance or long continued absence of any member unheard of, shall not be regarded as evidence of death or give any right to recover on any benefit certificate heretofore or hereafter issued by the Society until the full term of the member's expectancy of life, according to the National Fraternal Congress Table of Mortality has expired within the life of the benefit certificate in question, and this law shall be in full force and effect, any statute of any state or county or rule of common law of any state or county to the contrary notwithstanding."
We hold that such by-law is contrary to public policy and absolutely void.
Truman Plantz, Geo. G. Perrin, and Geo. L. Bowman, for plaintiff in error.
Poe & Lundy, J. E. Curran, and R. E. Morgan, for defendant in error.
¶1 On January 29, 1903, the Modern Woodmen of America, as insurer, issued, and on February 5, 1903, delivered to Solomon E. J. Michelin, as insured, its benefit certificate, by the terms of which it promised to pay the insured mother, Marie L. Michelin, as beneficiary, upon the death of the insured, the sum of $ 1,000. Alleging the death of the insured, the beneficiary brought this suit in the district court of Tulsa county against the insurer and sought and obtained judgment thereon. The insurer brings the case here on appeal.
¶2 The plaintiff in her petition alleged that the insured had been absent and missing for a period of seven years, and that by diligent search and inquiry she was unable to learn of his being alive during that seven-year period, and for said reasons she therefore alleged that the insured was dead. Under a general denial contained in its answer, the company urged that the insured was seen alive during that seven-year period of time. The insurer denied that plaintiff had made inquiry concerning the insured sufficient to satisfy the rule of evidence on which the plaintiff relied in support of such proof of insured's death. Distinctly separate from this defense, the company pleaded that this rule of evidence had been abrogated in this case by a by-law of its own making, wherein it is recited:
"The disappearance or long continued absence of any member unheard of, shall not be regarded as evidence of death or give any right to recover on any benefit certificate heretofore or hereafter issued by the Society until the full term of the member's expectancy of life, according to the National Fraternal Congress Table of Mortality, has expired within the life of the benefit certificate in question, and this law shall be in full force and effect, any statute of any state or country or rule of common law of any state or country to the contrary notwithstanding."
¶3 This by-law was adopted by the company long after this benefit certificate was issued, but in the lengthy printed benefit certificate it is provided that the insured shall be bound by-laws thereafter adopted.
¶4 For a further defense the company pleaded that the benefit certificate was executed and delivered in Kansas, and was therefore a Kansas contract, to the interpretation and enforcement of which must be applied the laws of the state of Kansas, under which, so the company pleaded, the action was barred by the statute of limitations at the time it was instituted. This defense was later abandoned.
¶5 The material facts in support of the plaintiff's allegation of the insured's absence for seven years and of the inquiry which was made concerning him are about as follows, to wit: Marie L. Michelin and her husband, the parents of the insured, lived for 23 years at Madison, Kan., and on November 24, 1907, the family moved to Grannis, Ark., and established a home. The family then consisted of the parents, and the insured, and of one brother and one sister. In August, 1909, the insured was 25 years of age, unmarried and living with his parents at the family home. He had then held the benefit certificate sued on in this case for nearly seven years and same was in full force and effect. He left home without declaring just where he was going. He was a carpenter by trade and had spent a part of his time in the organization of lodges for the Woodmen of the World. In January, 1910, his father received a postal card from the insured, on which the insured had written these words: The postal card was mailed in the Republic of Mexico. A photographic copy of same is set out in the record, but we are unable to learn therefrom the post office in the Republic of Mexico where the same was mailed. On...
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