Southland Life Ins. Co. v. Norwood

• Citation: 76 S.W.2d 166
• Decision Date: 05 October 1934
• Docket Number: No. 12962.,12962.
• Parties: SOUTHLAND LIFE INS. CO. v. NORWOOD.
• Court: Court of Appeals of Texas

Page 166

76 S.W.2d 166

SOUTHLAND LIFE INS. CO. v. NORWOOD.

No. 12962.

Court of Civil Appeals of Texas Fort Worth.

October 5, 1934.

Rehearing Denied November 2, 1934.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Suit by Mrs. Emma R. Norwood against the Southland Life Insurance Company. From the judgment, the defendant appeals.

Reversed and remanded.

Raymond E. Buck, of Fort Worth, and Seay, Malone & Lipscomb, of Dallas, for appellant.

Goree & Rice and Allen & Gambill, all of Fort Worth, W. B. Harrell, of Dallas, and W. R. Walker, of Cleburne, for appellee.

LATTIMORE, Justice.

This is an appeal from a verdict for plaintiff upon a life insurance policy sued on under article 5541, Rev. Civ. Statutes, the presumption of death statute.

The insured, Sidney B. Norwood, a banker, fled upon the failure of his bank in October, 1921, and went to Mexico. He was indicted in several cases, state and federal, and was not arrested or tried, though sought by officers. He remained in hiding, changing his appearance and name, but was seen frequently and his movements readily traced by testimony until the fall of 1924, when, according to appellee's testimony, he disappeared and has not been seen or heard of since. In 1923 he returned secretly to Cleburne, his home, and made an effort, through attorneys, to effect some compromise of the criminal cases against him, but was unsuccessful and left, going in 1924 to the home of a cousin in Tucumcari, N. M., which was the hub of his wanderings until the fall of 1924, when he left, saying to her that he was going back to Mexico and writing to his mother that he was dropping out of her life forever.

The insurance policy lapsed on October 23, 1928, for failure of premium payment, unless Norwood was then dead. The defendant produced two witnesses who testified to having seen and talked with Norwood in 1929.

The verdict of the jury was as follows:

"You are instructed in connection with question No. One, which follows, that under the terms of Article 5541 of the Revised Civil Statutes of the State of Texas, any person absenting himself for seven years successively shall be presumed to be dead, unless proof be made that he was alive within that time.

"Question One: Do you find from a preponderance of the evidence in this case that Sidney B. Norwood is dead? Answer: Yes.

"Question Two: If you have answered question one, no, you need not answer this question, but if you have answered same yes, then answer: Do you find from a preponderance of the evidence in this case that Sidney B. Norwood died prior to October 23, 1928? Answer: Yes.

"You are the exclusive judges of the credibility of the witnesses, of the weight to be given to their evidence and of the facts proved herein, but you will receive the law of the case from the court, as given in this charge, and be governed thereby.

                         "[Signed] Bruce Young, Judge
                

"We, the jury, find and answer the questions submitted to us herein as shown by our answers thereto, and we return such answers as our verdict in this case."

The appellant excepted to the court's charging the jury in the language of article 5541.

The statutory presumption from absence is rebuttable, and such rebuttal may be by circumstantial evidence. In this case, the very circumstances of Norwood's flight from Cleburne, the numerous indictments against him, his determination not to be arrested, his endurance of sickness, accident, gun wounds, all in hiding from the United States officers, are sufficient to raise for the jury the issue of whether his apparent disappearance warranted a conclusion that he was dead in October, 1928. As said in Thetford v. Modern Woodmen (Tex. Civ. App.) 273 S. W. 666, 672: "The circumstances surrounding Bert Thetford's disappearance from home being such as to raise the issue of his being alive, regardless of the presumption arising from his absence," etc. In truth, no one believed that Norwood's remaining away from Cleburne was evidence of anything except one thing, his determination not to fall into the hands of his government. We are not inclined to believe that any serious contention is made that he ever set up any other residence within the meaning of article 5541, R. S. He was a fugitive, moving from place to place, on the alert against searching officers, and taking as his whatever bed available he deemed not suspected to be his couch. His absence explained itself. This case, therefore, is simply a fact question: Was he dead on October 23, 1928? On this question the plaintiff brought much circumstantial evidence, but we are unable to see how the statement of the statute in the charge shed any light in that difficulty.

We do not want to be understood as outlining such a rule for all disappearance cases. The reason for the statute is sound, and in cases where an arbitrary line must be drawn the guidance of the statute is imperative. For example, as a milepost for the law of limitation it is useful (Sovereign Camp, W. O. W., v. Boden, 117 Tex. 229, 1 S.W.(2d) 256, 61 A. L. R. 682), but, when death prior to the expiration of seven years' absence is the issue, then there is no legal presumption concerning his being alive or dead at that date. This suit could have been filed in 1928, in which event no presumption existed. The presumption could have arisen in 1931, but it solved no issue to find him dead then. The issue is whether or not the missing one died before the termination of the seven-year period, and the case, as far as the jury is concerned, is one of fact, and the presumption of article 5541 aids them not at all in solving that question.

Whether the statement in the charge was harmful to appellant seems to us a more difficult question. The charge is, on the one hand,...