Mutual Ben. Life Ins. Co. v. Martin

• Decision Date: 10 March 1900
• Citation: 55 S.W. 694,108 Ky. 11
• Parties: MUTUAL BEN. LIFE INS. CO. v. MARTIN. [1]
• Court: Kentucky Court of Appeals

55 S.W. 694

108 Ky. 11

MUTUAL BEN. LIFE INS. CO. v. MARTIN. ^[1]

Court of Appeals of Kentucky.

March 10, 1900

Appeal from circuit court, Franklin county.

"To be officially reported."

Action by Edmonia Martin against the Mutual Benefit Life Insurance Company on a policy of life insurance. Judgment for plaintiff, and defendant appeals. Reversed.

John W Rodman and Dodd & Dodd, for appellant.

Ira Julian and W. S. Pryor, for appellee.

HOBSON J.

On July 24, 1883, appellant issued a policy of insurance on the life of James W. Tate, payable to his wife and children at his death. The amount of the policy was $5,000, and it was to be a paid-up policy after 15 annual payments. On June 30, 1897 appellee, Edmonia Martin, filed this suit to recover of appellant the amount of the policy, alleging that she was the only surviving child of the insured; that his wife was dead. She also averred that the assured was dead, alleging that on the 16th of March, 1888, he had left his home in Frankfort Ky. and gone from the state, and had not returned since,--a period of seven successive years; that his relations to his family were always pleasant and unusually happy, and there had been no cause to change those relations; that he was last heard from on December 12, 1888, and that his absence from the state without being heard from had been continuous from that time. Appellant filed an answer in which it denied that the assured was dead. It alleged that for many years prior to his leaving the state he had been treasurer of the state of Kentucky; that as such he had embezzled a large amount of money belonging to the state, and in June, 1888, was indicted for the crime of embezzlement; that on account of this offense he had fled from the state, in the full vigor of health, to avoid impending disgrace and punishment; that he had since concealed himself to avoid arrest as a fugitive from justice; that a reward of $5,000 had been offered for his apprehension and delivery to the jailer of the county, and that it was for this reason he had remained absent from the state. Appellant also relied on a clause in the policy forbidding the assured to reside in certain localities, claiming that thereby the policy had been forfeited. It was also stipulated in the policy that, should the assured survive July 1, 1898, the amount of $2,000 should be payable to him, his executors and assigns. Appellant alleged that the amount due on the policy was, under this clause, payable to him or his assigns, and denied for this reason all liability to appellee. The issues formed by the pleadings were submitted to a jury, who found for the appellee, and judgment was entered by the court on the verdict.

The proof introduced on the trial substantially established the facts alleged in the answer as to the circumstances under which Tate left the state. It also showed that he was then 57 years of age; that, after leaving the state, he wrote to his wife and daughter regularly until December, 1888. The first of these letters was written from British Columbia; the next from a steamer on the way to Japan; several from Japan, where he seems to have remained for some time, and then to have gone to China. He finally returned to Japan, and from there in November, 1888, he came to Tacoma, Wash. His last letter was written from San Francisco, Cal., December 3, 1888. In this letter he speaks of having had a miserable cold; says he writes a few lines as he passes along, and will write again in a short time. He was then, according to his letter, going through California to the territories, and said he would write them where to address him. After this he was not heard of any more. He had written at regular intervals once or twice a month up to this time. His letters are full of affection for his wife, daughter, and grandchild, and exhibit the most devoted family relationship. It further appears from them that he had lost considerably in weight since leaving home, and was anxiously hoping to be able to return. The proof also showed that very recently an elaborate effort had been made by Tate's friends to secure a pardon for him from the governor; but the appellee testified that she had nothing to do with this, and then believed him dead. Appellee relied on section 1639, Ky. St., establishing a presumption of his death, entitling her to recover. That section reads as follows: "If any person who shall have resided in this state, go from and do not return to this state for seven successive years he shall be presumed to be dead in any case wherein his death shall come in question, unless proof be made that he was alive within that time." It is insisted for appellant that this statute has no application, because proof was made that the assured was alive up to December, 1888, and that the statute only applies where the person leaves the state, and does not return for seven successive years, and he is not shown to be alive after he left. We think this would be a narrow construction of the statute. If this is its meaning, it would not apply to any case where the party was heard from after he passed the borders of the state, though only the next day after his departure, as he was on his journey away. The...