Nat'l Life & Accident Ins. Co v. Hankerson

Decision Date19 July 1934
Docket NumberNo. 23520.,23520.
PartiesNATIONAL LIFE & ACCIDENT INS. CO. v. HANKERSON.
CourtGeorgia Court of Appeals

Syllabus by Editorial Staff.

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Suit by Annie Stephens, now Hankerson, against the National Life & Accident Insurance Company. Judgment for plaintiff, and defendant brings error.

Reversed.

Hammond & Kennedy, of Augusta, for plaintiff in error.

H. A. Woodward, of Augusta, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, Presiding Judge.

1. "The presumption arising from seven years' absence of a person from his accustomed place of abode, unheard from, raises not only a presumption of death, but also a presumption of death at the end of the seven-year period, in the absence of proof to the contrary." Gantt v. American National Ins. Co., 173 Ga. 323, 160 S. E. 345; Jennings v. Longino, 177 Ga. 591, 599, 170 S. E. S06. These, however, are but prima facie presumptions, subject to rebuttal by proof. Civil Code 1910, § 5740; Penal Code, § 1016. "Where it is sought to raise a presumption of death by reason of the absence of a person from his known place of residence or domicile for seven years without being heard from, by the testimony of a witness who merely makes inquiry to lay the foundation for such proof, and who himself is not cognizant of any of the facts, the evidence must show that there has been an unsuccessful effort to find the absent person by search and diligent inquiry at his last known place of residence and among his relations or acquaintances, if any, and it must appear that the absent party has not been heard from for seven years or more by those who would be most likely to hear from him. Evidence of absence of a person from his original place of residence will not raise the presumption of death, where it appears that he has moved to another place and there located." Hansen v. Owens, 132 Ga. 648 (2, 3), 652, 64 S. E. 800. Where the person supposedly dead has moved "from this state to a named point in another state, inquiry must be made at the last known domicile of the absentee at which he resided in the other state, and it must be shown, by those who would be most likely to hear from him, that he was absent and unheard of in the last place of residence for seven years." Rudulph v. Brown, 150 Ga. 147 (2), 150-152, 103 S. E. 251.

2. The plaintiff's amended petition in this case, seeking to recover as beneficiary upon a life insurance policy issued to a second cousin of the plaintiff, alleged that the insured disappeared from Savannah, Ga., in the fall of 1924, and had since remained absent and unheard of, notwithstanding the plaintiff's diligent inquiries, and was sufficient, as against the defendant's demurrers, to raise the presumption that the insured was dead at the end of the seven-year period.

3. The amended petition was not subject to the ground of demurrer that, no insurable interest in the plaintiff being shown, the policy was a wagering contract. The amendment alleged that the policy was issued to the alleged deceased person as the insured, and the plaintiff, who did not procure the, policy, being the beneficiary, the fact that she was only his second cousin was immaterial. Union Fraternal League v. Walton, 109 Ga. 1, 34 S. E. 317, 46 L.R. A. 424, 77 Am. St. Rep. 350; Ancient Order v. Brown, 112 Ga. 545, 548, 37 S. E. 890; Grand Lodge v. Barnard, 9 Ga. App. 71, 77, 70 S. E. 678; Cherokee Life Ins. Co. v. Banks, 15 Ga. App. 65, 66, 82 S. E. 597; Interstate Life & Accident Co. v. Frazier, 40 Ga. App. 811(2), 812, 151 S. E. 529. Nor is there any merit in the ground that it is not shown when theinsured died, or in other grounds of the demurrer. The court did not err in allowing the amendment to the petition, changing the original averment that the policy was issued to the plaintiff to an averment that it was issued to the alleged deceased person as the insured; the policy itself, a copy of which was made a part of the original petition, so showing.

4. Under the immediately preceding ruling and the uncontradicted evidence that the policy was issued to the deceased and not to the plaintiff as the insured, the court did not err in failing to submit to the jury the defense that the policy was void because the plaintiff beneficiary, as a second cousin of the alleged deceased, had no insurable interest in his life.

5. Exception is taken to the following charge: "A man is presumed to live at least seven years after you last heard from him, and if you believe from the evidence, that this man, the deceased, if deceased, left his last known place of abode or domicile and residence, and that has continued for seven years, and he has not been heard from or seen, and that diligent search and inquiry has been made by his relatives or friends at that last known place of abode, and yet they have not heard from him or seen him, then the presumption is that he is dead." This instruction...

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