Seeds v. Grand Lodge of Iowa

• Decision Date: 20 December 1894
• Citation: 61 N.W. 411,93 Iowa 175
• Parties: SEEDS v. GRAND LODGE OF IOWA, A. O. U. W.
• Court: Iowa Supreme Court

93 Iowa 175

61 N.W. 411

SEEDS

v.GRAND LODGE OF IOWA, A. O. U. W.

Supreme Court of Iowa.

Dec. 20, 1894.

Appeal from district court, Delaware county; J. L. Husted, Judge.

This action is brought to recover upon a certificate of insurance issued by the defendant to Edward Rowell for $2,000, payable at his death to his wife, Margaret Rowell. Margaret Rowell, claiming that her said husband was dead, served proofs of death upon the defendant on July 20, 1889, and demanded payment of said certificate, which was refused. On July 28, 1889, Mrs. Rowell died, leaving a will bequeathing most of her estate to Edward F. Rowell, minor son and only child of said Margaret and Edward Rowell. The plaintiff, Charles J. Seeds, was appointed administrator of said estate, and guardian of said minor, and in these capacities prosecutes this action. Issues were joined, and the case tried to a jury. At the conclusion of the evidence, on behalf of both parties, the defendant moved the court “to direct a verdict in this cause in behalf of the defendant on the undisputed facts, there being no sufficient testimony to support a verdict in behalf of plaintiff.” This motion was sustained, and verdict returned and judgment entered accordingly. Plaintiff appeals. The further issues and facts sufficiently appear in the opinion. Affirmed.Blair, Dunham & Norris and M. W. Herrick, for appellant.

J. D. Nichols and Yoran & Arnold, for appellee.

GIVEN, J.

1. All dues and assessments payable under the certificate sued upon were paid up to and including August 15, 1884, and none thereafter. Under the contract of insurance, Edward Rowell, if then living, became suspended from membership, and said certificate forfeited, September 28, 1884, for a failure to pay an assessment, and on December 31, 1884, for a failure to pay dues. Under the issues the burden was upon the plaintiff to show that the assured died during the life of the certificate. Edward Rowell has been absent and unheard of since August 5, 1882, or, according to the statement of one witness, since the last of September, 1882. There is no direct evidence of his death, but plaintiff relies upon his absence, and the circumstances attending it, as sufficient to establish the fact of death during the life of the certificate. It is a familiar rule that one shown to be alive will be presumed to continue to live, some authorities say, until he reaches the age of 100 years. Abb. Tr. Ev. 73. Equally familiar is the rule “that when a person has not been heard of for many years, the presumption of the duration of life ceases at the end of seven years.” Tisdale v. Insurance Co., 26 Iowa, 176. Rowell has been absent and unheard of for more than seven years prior to the time this action was commenced, and, in the absence of explanation, will be presumed to have been then deceased, but nothing can be presumed from that absence as to the time when his death occurred; in other words, it cannot be presumed from his being seven years absent and unheard of, following August or September, 1882, that he died prior to September 28 or October 31, 1884. Whiteley v. Society (Wis.) 39 N. W. 370. The assured had been absent and unheard of but a little over two years prior to his suspension from membership and the forfeiture of his certificate. The law will not presume, from that absence alone, though unexplained, that he died during that period. The rule that death may be presumed from seven years' unexplained absence does not exclude evidence of other facts and circumstances which fairly tend to establish the probability of death within an earlier period. Tisdale v. Insurance Co., supra.

It is not upon absence alone that plaintiff relies to establish the death of Rowell during the life of the certificate, but also upon the circumstances connected with that absence. This brings us to inquire whether the circumstances proven are such as that, under the rule announced in Meyer v. Houck, 85 Iowa, 327, 52 N. W. 235, the court erred in not submitting the case to the jury. The rule announced in that case is as follows: “Our conclusion is that when a motion is made to direct a verdict, the trial judge should sustain the motion when, considering all of the evidence, it clearly appears to him that it would be his duty to set aside a verdict found in favor of the party upon whom the burden of proof rests.” The material facts and circumstances shown by the evidence are, in substance, as follows: Prior to the events hereafter stated, Edward Rowell, his wife, and only child resided together at Manchester, Iowa, until some months prior to April, 1882. Rowell was in the habit of using intoxicating liquors to some extent, to which Mrs. Rowell objected. In consequence of that, and possibly to secure employment, he went to other places, and remained, seldom returning to his family, and only for a short time. Their son, Edward F. Rowell, testifies as follows: “He returned from Independence. He came one night from Independence. He wouldn't stay to supper, and it was raining hard, and he went away. My mother tried to persuade him to stay, but he would not stay. He said he would go away, and then he would come back. He went to Waterloo that night. The reason he assigned for not staying was, he drank, and my mother didn't wish to live with him while he drank; and she said that when he would behave himself, and become a man, that she was willing to live with him, and, until he did, she wouldn't; and so he went away and tried to behave himself, I guess. He went to Cedar Rapids to work. As near as I can remember, he drank some before he went to Cedar Rapids. Mother made objections to it, and that was the cause of the trouble between them. I remember of his coming home from Cedar Rapids. I can't remember as she refused to live with him when he came home from Cedar Rapids, but I know that he still drank, and she wouldn't live with him until he had given it up. My mother got him a place in Independence to work. He lost his place in Independence, and came home, and went away again to work, to Waterloo. He said he would send home money to help support the family. I know he sent home one dollar. He promised to send home some more, but we didn't get it. I don't know...