National Life & Acc. Ins. Co. v. Hankerson

• Citation: 175 S.E. 590,49 Ga.App. 350
• Decision Date: 19 July 1934
• Docket Number: 23520.
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. v. HANKERSON.
• Court: Georgia Court of Appeals

175 S.E. 590

49 Ga.App. 350

NATIONAL LIFE & ACCIDENT INS. CO. v. HANKERSON.

No. 23520.

Court of Appeals of Georgia, Second Division

July 19, 1934

Syllabus by Editorial Staff.

Proof of person's absence for seven years from accustomed abode, unheard from, raises rebuttable presumption of death at end of seven-year period (Pen. Code 1910, § 1016; Civ Code 1910, § 5740).

To raise presumption of death from absence of one who has moved to another place or state, testimony of those most likely to hear from him that he was absent from and unheard of in last place of residence for seven years is required (Pen. Code 1910, § 1016; Civ. Code 1910, § 5740).

Petition on life policy alleging that insured disappeared over seven years before, and had since remained absent and unheard of notwithstanding plaintiff's diligent inquiries held sufficient, as against demurrer, to raise presumption that insured was dead at end of seven-year period (Pen. Code 1910,§ 1016; Civ. Code 1910, § 5740).

Second cousin named as beneficiary in life policy issued to insured held entitled to recover thereon, as against objection that she had no insurable interest.

Allowing amendment of beneficiary's petition on life policy to change original averment that policy was issued to beneficiary to averment that it was issued to insured held not error, where copy of policy made part of original petition showed such fact.

In suit on life policy by beneficiary who was second cousin of insured, where evidence was uncontradicted that policy was issued to insured, and not to beneficiary, failure to submit defense of beneficiary's lack of insurable interest held not error.

In suit on life policy, instruction on presumption of insured's death from seven years' absence from "last known place of abode" held not erroneous because failing to define or elaborate "last known place of abode" or nature of search which must have been made, especially in absence of written request for such charge (Pen. Code 1910, § 1016; Civ. Code 1910, § 5740).

Absolute refusal of insurer to pay loss constitutes waiver of life policy requirement for notice of death and proof of loss (Civ. Code 1910, § 2490).

Bare presumptions of law give way to testimony, which may shift burden of proof or of proceeding to opposite party, who is then not entitled to prevail upon presumption alone.

Whether presumption has been successfully rebutted with testimony is ordinarily jury question.

Where presumption from absence is relied upon to show death, issue of life or death is for jury, when evidence tending to rebut presumption is merely circumstantial, or when, notwithstanding direct or circumstantial rebuttal evidence, bare legal presumption of death is itself supported by direct or circumstantial proof (Pen. Code 1910, § 1016; Civ. Code 1910, § 5740).

Mere legal presumption of death from absence is completely overcome by positive, uncontradicted evidence that person is in fact alive, or by competent proof of his existence within seven-year period (Pen. Code 1910, § 1016; Civ. Code 1910, § 5740).

In suit on life policy, where plaintiff relied on presumption of death from absence, unimpeached and uncontradicted testimony that insured had been seen within seven-year period of his alleged absence demanded verdict for insurer (Pen. Code 1910, § 1016; Civ. Code 1910, § 5740).

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.

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. 806. 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....