Potter v. Prudential Ins. Co.

• Decision Date: 27 July 1928
• Court: Connecticut Supreme Court
• Parties: POTTER v. PRUDENTIAL INS. CO.

142 A. 891

108 Conn. 271

POTTER v. PRUDENTIAL INS. CO.

Supreme Court of Errors of Connecticut.

July 27, 1928

Dissenting Opinion Received Sept. 12, 1928.

Appeal from Court of Common Pleas, New Haven County; Harry J Beardsley, Judge.

Action by Elizabeth Potter against the Prudential Insurance Company to recover on an insurance policy on the life of William H Potter. Judgment for plaintiff, and defendant appeals. Error in part, and judgment directed.

Maltbie J., dissenting.

William B. Fitzgerald and Ulysses G. Church, both of Waterbury, for appellant.

Andrew D. Dawson, of Waterbury, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HINMAN, BANKS, and YEOMANS, JJ.

WHEELER, C.J.

The plaintiff, the beneficiary under an insurance policy on the life of her first husband, seeks to recover on the policy. From the judgment in favor of the plaintiff, defendant appeals. The errors assigned upon the appeal of the defendant, aside from those relating to the correction of the finding, concern the holding of the trial court that the plaintiff had satisfactorily proven that the assured was dead, and had failed to meet the defendant's special defense, that the action upon the policy did not accrue within 6 years next before the commencement of this action, by establishing that the defendant had acknowledged the existence of the obligation on the policy within the 6 years' period. The correction of the finding in substantial accordance with the defendant's claims in a number of particulars should be allowed as follows:

Paragraph 37 should be corrected by striking out " 2 1/2 years," and inserting " upwards of 2 years," and adding to the paragraph:

" The defendant offered no evidence in support of its amended answer and special defense filed June 2, 1927, nearly six months after it had completed its ‘ careful investigation’ of the disappearance of the insured."

Paragraph 11 should be corrected to read:

" The defendant insurance company endeavored to get information of the insured through the Knights of Pythias and American Mechanics of which the insured was a member."

How extensive the investigation of these organizations was the evidence does not disclose. All that appeared in evidence was that the insurance company sought through them to ascertain whether the assured was living and at the request of the insurance company these organizations made inquiries of the relatives of the insured as to their knowledge of his whereabouts.

The plaintiff made no inquiries of these organizations as to the whereabouts of the insured or requested them to make an investigation as to this.

Paragraph 13 should be corrected by striking out, " of his friends," and inserting, " of a husband and wife who were his only intimate friends."

Paragraph 15 should be corrected by striking out, " or business friends." There should be added to the finding:

" Plaintiff made no inquiries of her husband's former fellow employees in Waterbury with whom he had worked several years, or those in Derby and Jersey City with whom he had worked a few months; nor did she make inquiry of the police department in Waterbury or Dayton, or of the board of health in Dayton."

Other corrections claimed are not of substantial merit. The case can, we think, be fairly disposed of upon the finding thus corrected without ordering a new trial on account of the corrections made.

When these corrections are made we have this case: Potter the insured lived on amicable and affectionate terms with his wife and with his parents. He had a boy 2 1/2 years old. He was a healthy, sober, and industrious man of good habits, providing for his family as his means permitted, and having no financial troubles. He was a machinist by trade and could not get work. He saw an advertisement which represented that mechanics were needed in Dayton, Ohio. He determined to go there, and with $50 in pocket, on August 3, 1909, started for Dayton, Ohio, his wife parting with him at the train. He had promised to send her money when he got work. Upon his arrival in Dayton he sent her a postal giving address, " Hotel Chrystal, 125th Street, Dayton, Ohio." This was the only communication she had from him and none of his near relatives have heard from him since. She wrote him a number of times between August 3, 1909, and May 2, 1910, but none of her letters were answered. On or about May 2, 1910, she wrote him at the address given her on the card and requested that it be advertised by the postmaster. It was returned to her unopened, with indorsements on envelope of various places where the post office authorities had attempted to locate Mr. Potter. Her husband had been in the Navy prior to his marriage. She tried to locate him through the Navy Department, but found that he had not enlisted in the Navy or in the Army. She inquired of the members of her husband's family and through his most intimate friends of his whereabouts. Upon her demand upon the defendant for the payment of the insurance, the company requested that she fill out a detailed disappearance questionnaire concerning the case. She furnished, at its request, all the information she had. The company replied that it was making inquiries and upon their completion promised to further inform the plaintiff. Three months later the company wrote that it had not yet quite completed its investigation and repeated this in a number of other letters extending over a further period of nearly 2 years and its last letter said they had made careful investigation of the case, but had not obtained information warranting it in believing the death of the assured occurred prior to the expiration of the policy.

The defendant now complains of the inadequacy of the plaintiff's investigation. Her inquiry of the fraternal associations would have been fruitless. The defendant made such inquiry and offers no proof of the result of its efforts.

Defendant also complains because plaintiff failed to inquire of the police departments of Waterbury and Dayton or of the health department of Dayton. The failure of the defendant to offer proof of the results of its " careful investigation" justifies the inference that it developed no facts tending to indicate that the insured was still alive. These circumstances indicate how futile it would have been for the plaintiff to have investigated at these sources, either prior to this action, or at the present time.

In its memorandum of decision the court held that the presumption of the death of William H. Potter arose under our statute as of June 10, 1910, the time the letter of May 2, 1910, was returned unopened to the plaintiff by the postmaster at Dayton, Ohio. It is evident the court was referring to General Statutes, § 4976, which provides that " any person who shall have been absent from his home and unheard of for a period of seven or more years shall be presumed to be dead" for purposes of administration of his estate. There is a public interest involved in the administration of the estate of a deceased which is not involved in questions affecting the determination of actions upon his contracts. This statute was passed to meet this public interest. It does not have any large, much less conclusive, significance in determining the question whether this assured is to be now presumed to be dead. That is to be determined by the rule of our common law. The rule as generally stated is that a presumption of death arises from an unexplained absence of 7 years. This is not a presumption of law signifying " that which may be assumed without proof, or taken for granted," and that which " is asserted as a self-evident result of human reason and experience" (Ward v. Metropolitan Life Ins. Co., 66 Conn. 227, 238, 33 A. 902, 904 ), but a rule of reasoning, as Professor Thayer states in his Preliminary Treatise on Evidence, p. 319 et seq. It is an inference from the fact of the absence of 7 years or more taken in connection with all the circumstances showing that, although diligent investigation has been made by the person seeking to prove the fact of death, the fact of the absence remains " unexplained." The inference must reasonably follow from the fact of absence and the circumstances of diligent investigation that death is the probable reason for the absence. The burden of proving that the absence is " unexplained" for this period is upon the person seeking to prove the fact of death, and, unless diligent efforts have been made to find the absent one, his absence cannot be held to be " unexplained." We have not heretofore had occasion to formulate this rule of reasoning. That which we have adopted is supported, we believe, by the larger number of the courts of this country and upon what we conceive to be the better reason. " He who relies upon an unexplained absence during 7 years must prove it, and he must prove more than the mere fact of absence during that period. He must also produce evidence to justify the inference that death is the probable reason why nothing is known about the missing person." Fuller v. New York Life Ins. Co. (C. C. A.) 199 F. 897, 898; Modern Woodmen v. Gerdom, 72 Kan. 391, 394, 82 P. 1100, 2 L.R.A. (N. S.) 809, 7 Ann.Cas. 570; Policemen's Benevolent Ass'n v. Ryce, 213 Ill. 9, 17, 72 N.E. 764, 104 Am.St.Rep. 190; Doe d. France v. Andrews, 15 Adolphus and Ellis, N. S. Q. B. 756; Matter of Wagener, 143 A.D. 286, 287, 128 N.Y.S. 164; 17 C.J. pp. 1167-1175.

We cannot hold under these circumstances that the conclusion of the trial court that the plaintiff, at the time the insured left Waterbury, and ever since, has made diligent search and inquiry to locate him, is so unreasonable, in the light of the circumstances and facts found, as to be erroneous as a matter of law. It is, we think, an...