Parker v. New York Life Ins. Co.

• Decision Date: 01 March 1926
• Docket Number: 25470
• Citation: 142 Miss. 517,107 So. 198
• Court: Mississippi Supreme Court
• Parties: PARKER v. NEW YORK LIFE INS. CO. [*]

107 So. 198

142 Miss. 517

PARKER v. NEW YORK LIFE INS. CO. ^[*]

No. 25470

Supreme Court of Mississippi

March 1, 1926

Division A

DEATH. That person was fugitive from justice held insufficient to rebut statutory presumption of death from absence for seven years (Code 1906, section 1914; Hemingway's Code, section 1574).

The presumption created by section 1914, Code 1906 (section 1574 Hemingway's Code), that a person who absents himself from this state for seven successive years without being heard of is dead, can be rebutted only by proof that he was alive within that time; the mere fact that he was a fugitive from justice is insufficient for that purpose.

HON. R M. BOURDEAUX, Judge.

APPEAL from circuit court of Wayne county, HON. R. M. BOURDEAUX Judge.

Action by Mrs. Mary E. Parker against the New York Life Insurance Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

F. B. Collins, for appellant.

The appellant, Mrs. Mary E. Parker, not having any direct proof of the death of the insured based her right to recover on the provisions of section 1914, Code of 1906 (section 1574, Hemingway's Code).

It is our contention that when the plaintiff made proof of the fact that the insured disappeared more than seven years prior to the bringing of the suit and that since that time no member of his family or any one else, so far as they had been able to learn, after diligent search and inquiry, had ever heard any tidings from him, it was the duty of the court and jury under the law to presume that he was dead; and the burden was then on the defendant to make proof that he was living within that period of time. And no such proof was made in this case.

Under the statute, one shall be presumed to be dead, regardless of what might have caused him to remain absent from the state if he shall absent himself from this state for seven years without being heard from during said time. In support of our construction of this statute, see Hoyt v. Newbold, 46 Am. Rep. 757, wherein the court was construing the provisions of a New Jersey statute which is similar to the provisions of our own statute.

According to the instructions granted by the court below to the defendant in this case, the statute was given an entirely different and erroneous construction. The statute makes no exceptions; but, on the other hand, provides that when such proof is made, the person who has absented himself or remained beyond the sea or concealed himself, shall be presumed to be dead in any case where his death shall come in question,

The rule of the common law was that the motive and cause for the disappearance when coupled with other facts and circumstances might be shown in evidence to rebut the presumption of death. And it was the rule of the common law that if the facts and circumstances were such as to account for the person's not being heard from within the seven-year period, then under such exceptional cases, the court and jury were not bound to presume that the absent person was dead. But the statute under consideration does not make any such exceptions.

The verdict of the jury was contrary to the law and the evidence. This was because of the erroneous instructions given them on behalf of the defendant by the court below.

Deavours & Hilbun, for appellee.

The appellant had no direct proof of the death of the insured. The evidence of the condition of the insured at the time of his disappearance showed the very antithesis of death. He was young, strong, vigorous, physically and mentally fit, and in every way showed evidence of active, joyous life and activity. The only possible evidence that did indicate death was that of his disappearance and the presumption of death created by section 1914, Code of 1906 (section 1574, Hemingway's Code).

Counsel contends that facts and circumstances of the disappearance were not sufficient to go to the jury to rebut the presumption of death created by the statute; that because the appellant did not introduce direct evidence that the insured was alive within the seven-year period, the court should have granted a directed verdict against appellee, even though counsel for appellant did not request such a verdict at any time during the trial.

The statute invoked by appellant was carefully considered and construed by this court in New York Life Ins. Co. v. Brame, 73 So. 806, 112 Miss. 828, L. R. A. 1918B 86. The rule adopted in that case is that where a person is shown not to have been heard of for seven years by those who, if he had been alive, would naturally have heard of him, such person is presumed to be dead, unless the circumstances of the case are such as to account for his not being heard of without assuming his death.

This rule was embodied in the instructions complained of. Appellee introduced in evidence the strongest kind of facts and circumstances to show the cause of the disappearance of the insured without assuming his death. There was nothing in the world to show the likelihood of the insured's death at the time of his disappearance. In fact, the very opposite of sickness and accident and death is shown. The record discloses the strongest imaginable facts and circumstances to account for his not being heard of without assuming his death.

Appellant contends, in substance, that the presumption created by this statute cannot be overcome unless proof of life be made by direct...