White v. Prudential Ins. Co. of America

• Decision Date: 18 January 1935
• Docket Number: 30091.
• Citation: 258 N.W. 519,193 Minn. 263
• Parties: WHITE v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: Minnesota Supreme Court

258 N.W. 519

193 Minn. 263

WHITE v. PRUDENTIAL INS. CO. OF AMERICA.

No. 30091.

Supreme Court of Minnesota.

January 18, 1935

Appeal from Municipal Court of Minneapolis; Luther W. Youngdahl Judge.

Action by G. W. White, as special administrator of the estate of George N. White, deceased, against the Prudential Insurance Company of America. From an adverse judgment, defendant appeals.

Reversed.

Syllabus by the Court .

To give rise to a presumption of death after seven years' unexplained absence, such absence must be from the last usual place of abode or resort.

DEVANEY, C. J., dissenting.

Oppenheimer, Dickson, Hodgson, Brown & Donnelly and Geo. W. Jansen, all of St. Paul, for appellant.

S Segall, of Minneapolis, for respondent.

LORING Justice.

This was an action by George W. White, as special administrator of the estate of his son, George N. White, to recover on two industrial insurance policies in which George N. White was the insured. The plaintiff relied upon the presumption of death after an unexplained absence of the insured for a period of more than seven years. The jury returned a verdict for $421.92, the correct amount if plaintiff is entitled to recover. Defendant moved for a directed verdict, which was denied, and has appealed from the judgment entered pursuant to the verdict.

In 1917, the insured, at the age of 16, with his parents' consent, enlisted in the Army and saw service in France. He was discharged July 21, 1920. On his return from France he did not return to his former home in Mankato, nor did he do so when discharged. During his childhood he had lived with his parents in Mankato. During his service in the Army he wrote numerous affectionate letters to them. After his discharge, however, the record disclosed but two postal cards written by him; one from Riverside, Cal., dated November 13, 1920, and the other from Yuma, Ariz., dated November 30, 1920. These were the last communications which his family had from him. His mother wrote to him at Yuma, after receipt of the last postal card, but her letter came back undelivered.

Plaintiff alleged in his complaint that White re-enlisted in the Army October 14, 1924, at Fort Douglas, Utah, and the records of the War Department show that he enlisted under the name of Harry E. Holmes and claimed no prior service. They also show that November 1, 1924, he ‘ went absent without leave’ and has never been returned to military control since that date. The War Department is not informed as to his whereabouts.

In this there is a rebuttable common-law presumption that a person no longer lives, which arises from his unexplained absence from his usual place of abode or resort for a period of seven years. In order to initiate the period of required absence it is necessary that the person in question shall have absented himself from that place which was his customary place of abode or resort. His absence from the place where his relatives reside, which is not his own place of residence or abode, or their failure to hear from him does not raise any presumption of death. 8 R.C.L. 709; 17 C. J. 1170; Hitz v. Ahlgren, 170 Ill. 60, 64, 48 N.E. 1068; City of Litchfield v. Keagy, 78 Ill.App. 398; Stinchfield v. Emerson, 52 Me. 465, 83 Am.Dec. 524. In the case at bar the insured spent nearly two years in France with the Army and upon his return did not go home on furlough. Nor did he do so upon his discharge July 21, 1920. His parents did not know where he went. They heard from him twice by postal cards in November, 1920. They heard no more from him, and his whereabouts since that time are unknown, except that October 14, 1924, he reenlisted in the Army at Fort Douglas, Utah, under the name of Harry E. Holmes. This was a fraudulent enlistment because he claimed no prior service. Perhaps he so enlisted on account of an unsatisfactory record of prior service. His letters show commitment to the guardhouse on at least two occasions, and the date of his discharge taken in connection with his letters indicates that he made up considerable time which had been spent in confinement. No doubt he soon realized that this re-enlistment was punishable and he left his organization without leave November 1, 1924, and was never returned to military control. He has never been heard from since. This history makes it obvious that the home of his parents had, long prior to his disappearance, ceased to be his home or even his place of usual resort. Apparently he was a wanderer in the Southwest in 1920. Where he was from 1920 to 1924 no one knows. From 1924 on, if alive, he was a fugitive from military justice. These facts conclusively prevent a presumption of death based upon an absence from Mankato or upon the failure of his parents to hear from him. It could only arise upon a showing based on his absence from his usual abode or resort, if any, wherever that may have been.

This case is readily distinguished from Eklund v. Supreme Council, 152 Minn. 20, 187 N.W. 826, 828, where a husband, under fear of criminal prosecution, left his wife and family and, although he did not return to his home, expressed an intention of rejoining his family, kept in constant touch with them, and, under an assumed name, kept them advised of his whereabouts. This court there said: ‘ A man may be away from home following an occupation which takes him from place to place. He writes regularly to his wife, with whom his relations are cordial. With no explanation, his letters cease to come. She makes diligent inquiry, but cannot find him.’

And in another place in that opinion this court said: ‘ It seems to us, judging from the regularity with which he wrote to his wife and foster mother for the six years following his departure from Moorhead, that they would have heard from him after July 3, 1911, if he were not dead. There was no reason for the abrupt termination of his correspondence at that time. Apparently he entertained a genuine affection for his family. There is nothing in the correspondence to indicate an estrangement from his wife or that his expressed desire for a reunion in 1911 was insincere. If he had not died prior to 1915, it would seem that his wife's persistent and widespread inquiries would have elicited some information as to his whereabouts.’

The distinction between that case and this upon the facts is clear. In Carlson v. Equitable Life Assur. Soc., 188 Minn. 43, 246...