Sec. Bank Of Richmond v. Equitable Life Assur. Soc'y

• Decision Date: 08 June 1911
• Citation: Sec. Bank Of Richmond v. Equitable Life Assur. Soc'y, 112 Va. 462, 71 S.E. 647 (1911)
• Parties: SECURITY BANK OF RICHMOND. v. EQUITABLE LIFE ASSUR. SOCIETY OF THE UNITED STATES.
• Court: Virginia Supreme Court

112 Va. 462

71 S.E. 647

SECURITY BANK OF RICHMOND.

v. EQUITABLE LIFE ASSUR. SOCIETYOF THE UNITED STATES.

Supreme Court of Appeals of Virginia.

June 8, 1911.

1. Death (§ 2^*)—Presumption.

The presumption that one who has left home and who has not been heard from for seven years is dead does not arise until the end of the seven years; but there is no presumption as to the particular time of death, nor that he was living at any particular time, within that period.

[Ed. Note.—For other cases, see Death, Cent. Dig. §§ 1-3; Dec. Dig. § 2.*]

2. Insurance (§ 668*)—Life Policies—Preliminary Proofs of Death—Sufficiency —Determination.

In a suit on life policies, it is the duty of the court to determine in the first instance whether the preliminary proofs of death are satisfactory.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1732-1770; Dec. Dig. § 668.*]

3. Insurance (§ 543*)—Life Policies—Proofs of Death—Sufficiency.

Provision for payment of life insurance on "satisfactory proof" of death entitles insurer to demand proof with reasonable certainty, and is complied with by proof sufficient, standing alone, to support recovery.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1347; Dec. Dig. § 543.*]

4. Insurance (§ 550*)—Life Policies—Proof of Death.

A statement, submitted as part of a proof of death under life policies, showing that assured disappeared March 10, 1902, must be considered as of the time the proof was submitted April 22, 1903, and certainly not later than August, 1903, when suit was brought on the policies, as affected by the legal presumption of death.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1359-1361; Dec. Dig. § 550.*]

5. Insurance (§ 550*)—Life Policies—Proof of Death—Sufficiency.

The presumption of death arising from seven years' disappearance and a statement showing that assured disappeared March 10, 1902, is insufficient to show his death before April 14, 1903, when the policies lapsed for nonpayment of premiums.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1359-1361; Dec. Dig. § 550.*]

Error to Law and Equity Court of City of Richmond.

Action by Security Bank of Richmond, Va., against Equitable Life Assurance Society of the United States. Judgment for defendant, and plaintiff brings error. Affirmed.

The following instructions were given:

"(1) That whilst the law presumes that a person who has left his home and has not been heard from for seven years has died, yet the presumption of death in such cases only arises at the end of the seven years; that is to say, that the presumption of law of death does not arise until the expiration of seven years. But there is no presumption of the law as to the particular time of death within the seven years, nor does the law raise any presumption that the party who has so left the state has continued to live, or that he is living at any particular time during the seven years; but the burden is on the party asserting such a claim to prove it by testimony satisfactory to the jury. And in this case the jury are instructed that the burden of proof is upon the plaintiff to show to your satisfaction that Charles H. Hudspeth died before the 14th day of April, 1903, and unless you are so satisfied from the evidence of the proof of this fact you must find for the defendant.

"(2) That if the policies sued on in this case had lapsed by reason of nonpayment of premiums before the bringing of this suit, or that suit was brought before satisfactory proofs of the death of the assured had been furnished to the defendant, then the jury must find for the defendant.

"(3) That the statements set forth in the paper signed 'Jackson Guy, Cashier, ' and marked 'A, ' with the claimant's statement, are not 'such satisfactory proofs of the death of the assured' as is contemplated by the policies sued on in this case; and unless the jury believe from the evidence that further proof of the death of the assured was furnished to the defendant before this suit was brought, then they must find for the defendant."

Meredith & Cocke, Jno. H. Guy, and Samuel A. Anderson, for plaintiff in error.

Christian, Gordon & Christian and Hill Carter, for defendant in error.

KEITH, P. Three policies of insurance, amounting to $17,500, were taken out by Charles H. Hudspeth in the Equitable Life Assurance Society of the United States. At the institution of this suit, the Security Bank of Richmond, Va., the plaintiff, was the undisputed beneficiary of the three policies, and brought its action to the first Monday in August, 1903, averring that Hudspeth, upon whose life the policies were issued, was dead, and asking judgment for the amount of the insurance.

These policies contain a provision which is as follows: "The Equitable Life Assurance Society of the United States hereby assures the. life of Charles H. Hudspeth, of Midlothian, Va., hereinafter known as the assured, and on receipt of satisfactory proofs of the death of the assured, providing this policy is then in force, agrees to pay" the amount for which the policy is written.

The defendant pleaded non assumpsit, and for grounds of defense said: (1) That the policies of insurance sued on lapsed for nonpayment of premiums on April 14, 1903; (2) that no proof of the death of the assured has been furnished to the defendant, as required by said policies of insurance, and that no presumption of his death arose until the expiration of seven years from the time he was last seen alive, which time is stated by the plaintiff to have been about 2 p. m. on Monday, March 10, 1902; (3) that the burden of proof is on the plaintiff to show that the assured died prior to the time when the policies lapsed, on the 14th of April, 1903.

There was a verdict and judgment for the defendant, to which the plaintiff applied for and obtained a writ of error.

Passing over the preliminary correspondence between the attorneys for the Security Bank and the Equitable Life Society, we come to the proofs of death furnished to the Society before the institution of the suit, in compliance with the stipulation in the policies above set forth.

The eighth clause of claimant's statement is as follows: "State all facts regarding cause and circumstances of death." Answer: "See paper hereto attached, marked 'A.'" The paper here referred to is as follows:

"He disappeared from Richmond about March 6, 1902, without warning to family and friends; was traced to Washington, D. C, by detective, who learned that he had been drinking very heavily. Since that his family have not had a line from him. We sent full description to all police bureaus and detective agencies., offering reward.

"It is said he was very ambitious to make money, was very despondent, and exceedingly dissipated. Had lost all of his means, which we think caused him to take his own life. Last time seen, as far as we know, was at Johnson Hotel, Washington, D. C, about 2 p. m. on Monday, March 10, 1902. After his departure, his room was searched, and in it were found a number of empty whisky bottles, carried there by him. It was also proven that he drank very heavily at bar of said hotel.

"His family also have made every effort to locate him, but without success.

"Attached to and made a part of the proof of death of Charles H. Hudspeth by the Security Bank of Richmond.

"Jackson Guy, Cashier."

The paper marked "A" was dated April 22, 1903, and on April 27th the general agent of the Assurance Society informed Mr. Guy that the proofs submitted were not satisfactory to his company. It appears that the policies sued on were kept in force until April 14, 1903, by the payment of premiums, and, no further payment having been made, they lapsed upon that day.

After the evidence had been submitted to the jury, the court refused to give certain instructions asked for by the plaintiff, but instructed the jury: "That whilst the law presumes that a person who has left home and has not been heard from for seven years has died, yet the presumption of death in such cases only arises at the end of the seven years; that is to say, that the presumption of law of death does not arise until the expiration of seven years. But there is no presumption of law as to the particular time of death within the seven years, nor does the law raise any presumption that the party who has so left the state has continued to live or that he is living at any particular time during the seven years; but the burden is on the party asserting such a claim to prove it by testimony satisfactory to the jury. And in this case the jury are instructed that the burden of proof is upon the plaintiff to show to your satisfaction that Charles H. Hudspeth died before the 14th day of April, 1903; and unless you are so satisfied from the evidence of the proof of this fact you must find for the defendant."

This instruction Is in accordance with the decision of this court in Evans v. Stewart, 81 Va. 724, and correctly states the law.

The second instruction given was: "That if the policies sued on in this case had lapsed by reason of nonpayment of premiums before the bringing of this suit, or that suit was brought before satisfactory proofs of the death of the assured had been furnished to the defendant then the jury must find for the defendant."

And the third instruction: "That the statements set forth In the paper signed 'Jackson Guy, Cashier, ' and marked 'A, ' with the claimant's statement, are not 'such satisfactory proofs of the death of the assured' as is contemplated by the policies sued on in this court; and unless the jury believe from the evidence that further proof of the death of the assured was furnished to the defendant before this suit was brought, then they must find for the defendant" The case turns upon whether or not the second and third instructions correctly propound the law. The case was argued ably and fully, orally and upon the briefs. A great number of cases were cited—a greater number than can be considered and criticised within...