Nw. Mut. Life Ins. Co. v. Rutledge. Fid. Mut. Life Ins. Co., Case Number: 24502
| Decision Date | 19 November 1935 |
| Docket Number | Case Number: 24502 |
| Citation | 174 Okla. 639,51 P.2d 521,1935 OK 1130 |
| Parties | NORTHWESTERN MUTUAL LIFE INS. CO. v. RUTLEDGE. FIDELITY MUTUAL LIFE INS. CO. v. SAME. |
| Court | Oklahoma Supreme Court |
¶0 1. INSURANCE--DEATH -- Evidence -- Action on Life Policy Based on Presumption of Death of Insured From Unexplained Absence of Seven Years Without Tidings.
When the beneficiary of life insurance policies sues to recover for the death of the insured, alleging and proving that the insured has not been heard of for seven years since March 20, 1924, that diligent search and inquiry have been made by the beneficiary to locate the insured, to no avail, and furnishing proof that the insured was a sick man at the time of his disappearance, such evidence raises a prima facie presumption of the death of the insured. Such evidence or presumption, however, may be rebutted or overcome by a proper showing that the insured was seen alive during the seven-year period, or by proof that tends to explain the reasons for the absence of the insured.
2. SAME--Question Whether Absent Person Dead or Alive for Jury--Instruction Approved.
Where plaintiff makes a prima facie case involving the presumption of death after seven years' unexplained absence, and defendants offer rebuttal evidence to explain the reasons for the absence, the question as to whether such absent person is alive or dead thus becomes one for the triers of facts or jury. Instruction thereon examined and approved.
3. SAME--Letters of Absent Person to Wife Just Prior to Final Disappearance Held Admissible.
In a case involving the presumption of death after seven years' unexplained absence, letters of the absent person to his wife just prior to filial disappearance are admissible as being verbal acts indicating a present purpose and intention and as a part of the res gestae.
Appeal from District Court, Washington County; H. H. Montgomery, Judge.
Separate actions on life insurance policies by Florence E. Rutledge against the Northwestern Mutual Life Insurance Company (Milwaukee, Wis.), and the Fidelity Mutual Life Insurance Company (Philadelphia, Pa.). By stipulation, the cases were consolidated for the purposes of trial, and from judgments for the plaintiff, defendants present a consolidated appeal. Judgments affirmed.
Shipman & Lewis, for plaintiffs in error.
Rowland & Talbott, for defendant in error.
¶1 The defendant in error, hereinafter referred to as plaintiff, commenced these actions in the district court of Washington county, Okla., on January 22. 1932, against the defendants upon two policies of life insurance issued upon the life of the plaintiff's husband, Leon H. Rutledge. The policy of the Northwestern Mutual Life Insurance Company was issued October 19, 1920, for the amount of $ 2,500. The policy of the Fidelity Mutual Life Insurance Company was issued September 6, 1919, for the sum of $ 3,000.
¶2 The plaintiff alleged and proved that she and Leon H. Rutledge were married in Kansas City, Mo., in the year 1917, and that thereafter they lived together and made their home in Bartlesville, Okla., until April, 1923. That prior to 1923, the said Leon H. Rutledge was afflicted and suffered considerably with sinus trouble, resulting in severe headaches, and in June, 1922, upon the advice of local physicians, he went to Mayo's Clinic at Rochester, Minn., for an operation. He returned some six weeks later, but went back to Mayo's about the last of August or the first of September, and stayed until about October 22, 1922. In April, 1923, Leon H. Rutledge left home for the last time, presumably because the doctors had advised him that his health required that he live in the north, somewhere on a line with Chicago, Ill. The plaintiff received several letters from her husband thereafter, the fast being dated March 20, 1924, from Dewey, Okla. The letter, which was introduced in evidence by plaintiff to show the attitude of Rutledge towards his family, and his mental and physical condition, reads as follows:
¶3 Friends of the family and numerous other witnesses testified that Leon H. Rutledge was a dutiful and loving husband, being very attentive to his wife and baby. The plaintiff testified that ever since March 20, 1924, the date of the last letter from her husband, she has made diligent efforts to locate or get in contact with him. That she had solicited the help of L. U. Gaston, chief of police of the city of Bartlesville, and that the latter had caused pictures of Rutledge to be sent to cities and towns where he might be located or make an appearance. That she also solicited the help of Mr. L. W. Turner, who succeeded Mr. Gaston us chief of police of the city of Bartlesville, and wrote numerous letters of inquiry to friends and relatives at distant points. Mrs. Rutledge also obtained the help of S. N. Hawkes, one of the attorneys for the Empire Company, and he was unable to obtain any information as to the whereabouts of her husband.
¶4 It was not denied that the plaintiff had paid, and defendants had accepted, premiums on the policies in question up to the time of the filing of this suit on January 22, 1932. The pleadings in both cases were substantially the same with the exception of the amounts sought to be recovered. Plaintiff contends that the unexplained absence of her husband for more than seven years raises a common-law presumption of his death, and entitles her to recover, as beneficiary, the proceeds of the respective policies of life insurance from each defendant, less certain small sums which were loaned to the insured on each policy.
¶5 The defendants alleged and offered evidence that Leon H. Rutledge, upon one of his visits to Mayo's, became acquainted with a nurse; that thereafter he was seen on several occasions with a woman who represented herself to be the plaintiff herein, Florence E. Rutledge, and that this woman signed her name, with that of Rutledge, to an application and procured a loan upon each of the policies herein sued upon, representing herself at the time to be Florence E. Rutledge. The records of Mayo Clinic revealed the fact that Leon H. Rutledge had last appeared there on July 13, 1922, and had not been seen since that time. Carl B. Wood and Fred Gregory, both of Bartlesville, Okla., testified that after the insured returned from Mayo's Clinic he showed them a picture of a nurse, stating that he ran around with her while at Mayo's, and that he was "strong for her." A. W. Gardner of Rochester, Minn., testified that he had cashed a check for Rutledge for $ 100 which came back marked "no account." A. T. Twesne of Galesville, Wis., testified that in the summer of 1923 he met Rutledge and a woman he represented as his wife, and that he cashed a check for him which later came back marked "no funds." Other witnesses who testified that they had been defrauded by Rutledge on bad checks and the amounts of each were as follows: Dr. Yazel, Kansas City, Mo., $ 420; G. B. Barnett, Joplin, Mo., $ 150; Ira Ivan Flipp, Pittsburg, Kan., $ 50; Dr. E. H. Polhamus, Tulsa, Okla., $ 200; Edwin Wagner, New York City, New York. $ 382.10
¶6 Defendants alleged and contended at the trial that the presumption of death after seven years' absence never arose in this case, due to the fact that the absence of the insured was explained by the fact that Leon H. Rutledge had become entangled with another woman, and had committed fraudulent acts in the states of Oklahoma, Kansas, Missouri, Minnesota, Wisconsin, and New York.
¶7 The defendants first insist that the judgments of the lower court should be reversed for the reason that the trial court should have sustained their motions for directed verdicts. In this connection their argument is that the presumption of death does not arise unless the absence is unexplained, and that sufficient evidence was introduced to explain the absence of the insured, and that, therefore, the presumption of death could not, and did not arise.
¶8 In the case of Modern Woodmen of America v. Michelin, 101 Okla. 217, 225 P. 163, this court gave rather a comprehensive review of the development of the common-law presumption of death after seven years of unexplained absence. There the court said:
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