New York Life Ins. Co. v. Nashville Trust Co.

• Decision Date: 28 February 1942
• Citation: 159 S.W.2d 81,178 Tenn. 437
• Parties: NEW YORK LIFE INS. CO. v. NASHVILLE TRUST CO.
• Court: Tennessee Supreme Court

159 S.W.2d 81

178 Tenn. 437

NEW YORK LIFE INS. CO. v. NASHVILLE TRUST CO.

Supreme Court of Tennessee.

February 28, 1942

Appeal from Circuit Court, Davidson County; A. B. Neil, Judge.

Action by the Nashville Trust Company, trustee, against the New York Life Insurance Company to recover on life policies. From a judgment for plaintiff, defendant appeals.

Affirmed.

Seay Stockell & Edwards, of Nashville, for appellant.

Walker & Hooker and Laurence B. Howard, all of Nashville, for appellee.

GREEN Chief Justice.

This suit was brought to recover upon two policies of insurance written on the life of Thomas C. Buntin by the New York Life Insurance Company for $25,000 each. The policies were payable to Nashville Trust Company as trustee for the benefit of Buntin's wife and children. A small loan had been obtained on each policy. There was a judgment in the circuit court for the amount of the two policies with interest, less the loan, the judgment aggregating $53,588.76. This judgment was affirmed by the Court of Appeals and we granted petition for certiorari.

For several years prior to September 24, 1931, Buntin had been the manager of an insurance agency in Nashville known as James E. Caldwell & Son, which was a business organized and owned by Buntin's grandfather whose name the corporation bore. On September 24, 1931, Buntin disappeared from Nashville and nothing had been heard from him by members of his family, by his friends, or business associates up to June, 1940, when this case was tried below. So far as appears, nothing has been heard from him by any of these persons yet.

Premiums on these policies had been paid up to April, 1932,--some six months or more after the date of Buntin's departure. Default was made in payment of these last premiums and the net cash value of the policies was applied to the purchase of term insurance, which carried the insurance until March 8 1933.

The plaintiff relies on the presumption of death generally arising from seven years' absence without tidings, etc and the plaintiff further submits that there is circumstantial evidence in the case entirely adequate to sustain the finding of the jury that Buntin died prior to March 8, 1933, the expiration date of the insurance.

Defendant Insurance Company submits that the evidence in the case, direct and circumstantial, is such as to dispel any presumption that Buntin is even now dead and is such as to preclude any finding that Buntin died prior to March 8, 1933. Defendant Company therefore insists that the trial court erred in refusing to direct a verdict in its favor and that presents the main question we have to consider.

There is no particular dispute about the applicable law. As stated by this Court in Marquet v. Ætna Life Insurance Co., 128 Tenn. 213, 159 S.W. 733, 736, L.R.A. 1915B, 749, Ann.Cas.1915B, 677, the general rule is that "'a person shown not to have been heard of for seven years by those (if any) who, if he had been alive, 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 from without assuming his death.' Davie v. Briggs, 97 U.S. 628, 24 L.Ed. [1086], 1088, and authorities there cited."

To the foregoing is added the statement that this inference of death is but a presumption "and it cannot arise unless the absence remains unexplained after diligent inquiry is made of the persons and at the places where tidings of the absentee, if living, would most probably be had." Ibid.

In Ballinger v. Connecticut Mutual Life Insurance Co., 167 Tenn. 367, 69 S.W.2d 1090, the Court stated that the death of an absent person may also be presumed in less than seven years if the circumstances in evidence warrant such conclusion. To the same effect are Shown v. McMackin, 77 Tenn. 601, 9 Lea, 601, 42 Am.Rep. 680, and Puckett v. State, 33 Tenn. 355, 1 Sneed 355. This ruling was supported in the Ballinger case by many authorities there collected. To these may be added the more recent cases of Kansas City Life Ins. Co. v. Marshall, 84 Colo. 71, 268 P. 529, 61 A.L.R. 1321, and American National Ins. Co. v. Hicks, Tex.Com.App., 35 S.W.2d 128, 75 A.L.R. 623, and cases collected in the Notes in American Law Reports following the two decisions mentioned as they appear in those volumes.

It was also noted in the Ballinger case that the seven years presumption of death may be looked to in aid of evidence tending to show death at an earlier period and this is the general rule as appears from authorities to which reference has just above been made.

Tisdale v. Connecticut Mutual Life Ins. Co., 26 Iowa 170, 96 Am.Dec. 136, is often referred to as the leading case supporting the rule just mentioned. In that case the Court said: "Any facts or circumstances relating to the character, habits, condition, affections, attachments, prosperity and objects in life, which usually control the conduct of men, and are the motives of their actions, are competent evidence from which may be inferred the death of one absent and unheard from, whatever has been the duration of such absence. A rule excluding such evidence would ignore the motives which prompt human actions, and forbid inquiry into them in order to explain the conduct of men."

It was expressly held in the Ballinger case that an inference of death might arise from disappearance under circumstances inconsistent with the continuation of life although exposure to a particular peril at the time of disappearance was not shown.

Such being the law, we consider in some detail the circumstances attending the life, temperament, habits, disappearance and continued absence of the insured herein, together with some direct evidence offered by defendant Insurance Company as to survival.

Buntin was nearly thirty years of age when he disappeared. He had been married several years and had three boys, to whom he appeared much attached, and who were said to be very fond of him. The relations between his wife and himself are shown to have been good. He was quite dissipated, as will more fully appear, but the proof does not indicate that his wife turned against him on this account. On the contrary, she tried to help him overcome his weakness as to liquor. It does not appear that she knew of his attentions to a young woman hereafter mentioned.

Buntin's father was a man of means. His mother perhaps had independent means and belonged to a family of wealth. Young Buntin, therefore, was reared in affluent circumstances. He had not known hardships and was physically and mentally unfitted to undergo hardships. As manager of this insurance concern he drew a salary of $300 a month before leaving Nashville. In addition to this his mother made him an allowance of $200 a month. This insurance business belonged to his grandfather, James E. Caldwell, and while he claims the young man was capable, other business men testifying in the record said that Buntin owed his job to his grandfather and was not qualified to obtain or hold any responsible position. In fact one of these witnesses expressed the opinion that about the only thing that young Buntin could do would be to act as an entertainer or something of that sort at a clubhouse or like resort.

There is much evidence in the record as to Buntin's disposition. He seems to have been a morbid type, subject to frequent fits of depression and alternate fits of exhilaration. When in these depressed moods, he would resort to intoxicating liquor, stay drunk for a time and, reacting from the spree, again drop into a state of depression. As expressed by Dr. John C. Burch, Buntin's physician, the latter's moods moved in a vicious circle.

Dr. Burch frequently treated Buntin for alcoholism, undertaking to straighten him out after his sprees. Dr. Burch and Dr. Tinsley Harrison both testified substantially that Buntin was a depressed, nervous, unstable, maladjusted individual. That he was naturally of this type and that these infirmities were enhanced by his excessive use of liquor.

Dr. Harrison, a specialist in nervous diseases, said that perhaps 80 per cent of suicides were individuals of the same type as Buntin. The witness further said that a tendency to suicide is hereditary.

As a matter of fact, Buntin's father committed suicide. He had, or thought he had, a disease which would render him imbecile and make of him a nuisance to his family, and with this belief took his own life. Young Buntin, the insured, knew how his father's life had been ended and frequently talked about it, justifying his father's act. It seems that the young man occupied the room in which his father had committed suicide and that there was a hole in the wall made by the bullet that killed his father. This hole was pointed out at times by young Buntin to visitors in his home.

There is considerable proof in the record that the young man talked to others about committing suicide and ending his troubles. This talk, while not taken seriously by some of the witnesses, seems to have impressed others. Buntin's wife said that she woke up in the night on one occasion, found him up in the room with a pistol in his hand, and took it away from him after a struggle, during which the pistol was discharged. Another witness noticed a pistol in Buntin's office when the latter was talking about suicide and this witness made Buntin give him the pistol. Dr. Burch, who was Buntin's friend as well as his physician, was apprehensive that the young man would kill himself and took precautions accordingly on at least one occasion.

At the time that he disappeared, Buntin and his family were living in Robertson County at a place that belonged to the young man's mother. He would drive in and out of Nashville each day. He left home on the morning of...