Stump v. New York Life Ins. Co.

• Decision Date: 20 August 1940
• Docket Number: No. 4630.,4630.
• Citation: 114 F.2d 214
• Parties: STUMP v. NEW YORK LIFE INS. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

114 F.2d 214 (1940)

STUMP v. NEW YORK LIFE INS. CO.

No. 4630.

Circuit Court of Appeals, Fourth Circuit.

August 20, 1940.

S. A. Powell, of Harrisville, W. Va. (Mathews & Reed, of Grantsville, W. Va., on the brief), for appellant.

W. T. O'Farrell, of Charleston, W. Va. (Louis H. Cooke, of New York City, and Brown, Jackson & Knight, of Charleston, W. Va., on the brief), for appellee.

Before PARKER and NORTHCOTT, Circuit Judges, and CHESNUT, District Judge.

NORTHCOTT, Circuit Judge.

This is an action at law brought by Jessie M. Stump, the appellant, here referred to as the plaintiff, in the Circuit Court of Calhoun County, West Virginia, against the New York Life Insurance Company, a corporation, appellee, here referred to as the defendant. The object of the action was to recover on a life insurance policy issued by the defendant in April, 1915, to Bailey G. Stump, for the sum of $3,000, in which policy his wife, the plaintiff, was named as beneficiary. On the first day of April, 1939, the policy was in full force in the sum of $3,272, and the declaration was filed in May, 1939.

The case was removed by the defendant to the District Court of the United States for the Northern District of West Virginia, on the ground of diversity of citizenship.

The defendant having answered, at a pretrial conference called by the judge below counsel for the parties filed a stipulation of facts and agreed to submit the action to the judge, sitting without a jury.

In March, 1940, the Judge of the District Court filed his findings of fact and conclusions of law together with a written opinion, finding for the defendant. Thereupon the plaintiff moved for a new trial, which motion was denied and judgment entered for the defendant. From this action this appeal was brought.

The plaintiff relies upon the presumption of death under West Virginia Code (1931), Chapter 44, Article 9, Section 1, which reads as follows: "In case any person has been or shall be absent for seven or more successive years from the place of his last domicile within this State; or, having been a resident of this State, has heretofore gone from and has not returned to this State for seven or more successive years; or, being a resident of this State, shall hereafter go from and not return to this State for seven or more successive years; or, being a nonresident of this State and being entitled to, or having an interest in, property in the State, has been or shall be absent for seven or more successive years from the place of his last known domicile; and in any of the foregoing cases shall for such period of time have been, or shall be, unheard of by those who, had he been alive, would naturally have heard of him; such person shall, in any case where his death shall come in question, be presumed in law to be dead, in the absence of proof to the contrary, or unless proof be made that he was alive within that time."

The stipulation of facts shows that the assured left his domicile and place of residence on the seventh day of July, 1924, and has been absent therefrom for more than seven successive years, and to the date of the institution of this action; that for more than seven years prior to the institution of this suit he had been unheard of by his wife, children, relatives and former business associates. The defendant asserted that the assured was a fugitive from justice, and that the presumption of death, under the statute, does not arise, or is completely overcome by the facts and circumstances of his departure and absence.

There is no dispute as to the facts. The insured at the time of his disappearance was cashier of a bank and shortly after he disappeared the grand jury, of the county in which he resided, returned indictments charging him with a felonious act of embezzlement from the bank in the aggregate amount of more than $12,000, and again in April, 1925, the insured was indicted for having made false entries in the books of the bank. He was also indicted for forgery. All these indictments were pending at the time of the institution of the action and capiases had been issued for the insured and returned not found. A reward had been offered for his apprehension.

In June, 1926, the insured was indicted in the District Court of the United States for the Northern District of West Virginia, for having violated Section 195 of the Federal Penal Code, 18 U.S.C.A. § 318. The insured at the time of his disappearance was married to the plaintiff and had three children, a mother then living and numerous other relatives. At that time he was suffering from ulcers of the stomach and required a special diet.

The sole question involved in this appeal is whether the fact that the insured was shown to be a fugitive from justice is sufficient to overcome the presumption of death, under the West Virginia statute above quoted.

In his opinion, the judge below holds that proof of the mere fact that insured was a fugitive from justice is sufficient to offset the legal presumption that the insured was dead, and construes the words used in the statute "in the absence of proof to the contrary" as referring to the proviso that the insured had been unheard of by those who, had he been alive, would naturally have heard of him. We cannot agree with this construction. The words of the statute are plain and unambiguous and where this is true the statute should be construed according to the clear meaning of the words used and resort may not be had to rules of construction. As we said in Inland Waterways Corporation v. Atlantic Coast Line Railroad Company, 4 Cir., 112 F.2d 753, 755, decided June 10, 1940, "It is only where there is some ambiguity in the statute or some uncertainty as to the meaning intended that resort may be had to rules of construction of statutes. * * * `The act must be interpreted by its own terms, * * *.' Omaha & Council Bluffs Street Railway Company v. Interstate Commerce Commission, 230 U.S. 324, 33 S.Ct. 890, 891, 57 L.Ed. 1501, 46 L.R.A.,N.S., 385."

The language of the statute is, "* * * shall for such period of time have been, or shall be, unheard of by those who, had he been alive, would naturally have heard of him * * *." In this connection the judge below, in his opinion says: "In other words, it is now necessary that there be certain persons who would naturally have heard of him, if alive, and that these persons have not heard of him."

The judge then holds that because of the admitted fact that the insured was a fugitive from justice, without considering other admitted facts, such as the condition of his health, his long absence and other circumstances relied upon by the plaintiff, "that plaintiff has not shown facts sufficient to establish the presumption of death under the West Virginia statute." This holding was clearly erroneous. There can be no question but that the admitted facts were sufficient to establish the presumption. The question was whether other stipulated facts were sufficient to rebut it.

The West Virginia statute plainly says, "such person shall, in any case where his death shall come in question, be presumed...