Whiteley v. Equitable Life Assur. Soc. of U.S.

• Decision Date: 18 September 1888
• Citation: 72 Wis. 170,39 N.W. 369
• Parties: WHITELEY v. EQUITABLE LIFE ASSUR. SOC. OF U. S.
• Court: Wisconsin Supreme Court

72 Wis. 170

39 N.W. 369

WHITELEY

v.EQUITABLE LIFE ASSUR. SOC. OF U. S.

Supreme Court of Wisconsin.

September 18, 1888.

Appeal from circuit court, Racine county; J. B. WINSLOW, Judge.

This action was commenced September 10, 1885, upon a policy of insurance issued by the defendant January 9, 1873, in consideration of $99.45 then paid, whereby it assured the life of said Joseph S. Whiteley in the amount of $5,000 for the term of his natural life, and thereby promised and agreed to pay that amount to the said Joseph S. Whiteley, his executors, administrators, or assigns, 60 days after due notice and satisfactory proof of the death, during the continuance of the policy; the balance of the year's premium, if any, being first deducted therefrom. By the terms of the policy, the premium was to be paid annually on or before the 3d day of January in every year during its continuance. January 2, 1874, it was agreed between the parties, as evidenced by the indorsement of the company's actuary upon the policy, in effect, that, in lieu of the annual premiums due thereon, thereafter there should be substituted quarterly premiums, each of $26.40, payable on each 3d day of January, April, July, and October thereafter, during the continuance of the policy. The complaint set out the policy, and alleged, in effect, the above facts; and also that Joseph S. Whiteley had performed all of the conditions of said policy on his part; that while a resident of Racine he died intestate on or about January 16, 1874; that the plaintiff was appointed such administrator, and qualified as such; that he furnished to the defendants the requisite proofs in 1874, and that the defendant had failed and neglected to pay, etc. The answer, in effect, admits the payment of the first premium; that said Joseph S. Whiteley had paid premiums on the policy to the amount of $125.85; but denies his compliance with the conditions of the policy, and alleges that he entirely failed and neglected to pay each and every of the premiums due thereon April 3, 1874, and quarterly thereafter; and denies that it has information sufficient to form a belief as to whether or not said Joseph S. died intestate on or about January 16, 1874, and therefore denies the same, or that he was then dead; and denies the sufficiency of the proofs; and admits the appointment of the plaintiff as administrator, but denies its validity in the absence of proof of the intestate's death. On the trial the jury returned a special verdict to the effect (1) that the insured, Joseph S. Whiteley, did not die before April 3, 1874; (2) nor by his own hand; (3) nor by reason of intoxication; (4) that they found for the defendant. From the judgment thereupon entered upon the verdict in favor of the defendant the plaintiff brings this appeal.Fish & Dodge, for appellant.

Quarles, Spencer & Dyer, for respondent.

CASSODAY, J., ( after stating the facts.)

About January 4, 1874, Joseph S. Whiteley started from his employer's, at Racine, on a trip as traveling salesman of boots and shoes, with two grip-sacks filled with samples. He then had with him $60 in cash and three checks of $30 each, payable to his order, and signed by his employer, to be used in paying his expenses. He went to Chicago, where he left both of his grip-sacks, and negotiated one of the checks. Afterwards he went to St. Louis, Mo., where he registered at an hotel January 15, 1874, and remained there until the next day. While there he indorsed and pledged one of the checks for board, but left January 16, 1874, and before the check had been collected. No trace of him has since ever been found, notwithstanding diligent search for him appears to have been made, not only in St. Louis, but in other places. At the time of his disappearance he was 27 years of age, had never been married, and had for some time been apparently affected by a disappointment in a love affair. The other check was never presented for payment, nor heard of. The answer admits that premiums on the policy to the amount of $125.85 had been paid by Joseph S. Whiteley. The next premium that became due by the terms of the contract of insurance, as modified, was the sum of $26.40, payable April 3, 1874. This suit was not commenced until more than 11 years after such disappearance. We only state a few of the facts and circumstances attending the disappearance of the insured, and those only in order to intelligently consider some of the questions of law presented by the record. The court, among other things, charged the jury, in effect, that such unexplained absence of Joseph S. Whiteley, without being heard of for more than seven years, raised a presumption that he was dead; but that it raised no presumption that he died at any particular time during the seven years, nor helped to fix the exact time of death within that seven years; that the plaintiff must prove by a preponderance of the evidence that he died before April 3, 1874; that such fact need not necessarily be established by direct evidence, but might be established by circumstantial evidence,--by inferences from facts and circumstances surrounding his disappearance. All this seems to be in accordance with well-settled rules of law. It is, however, strenuously contended that other portions of the charge were in direct conflict with it, and such as to preclude any recovery. Such other portions of the charge were to the effect that “the most important question in the case” was “whether Joseph S. Whiteley died before April 3, 1874;” that “when a person is shown to have been living at a certain time, the law presumes the continuance of his life until this presumption is overcome either by proof of his death, or by a presumption of death which arises after an unexplained absence of seven years. Therefore, in this case, the question being whether Joseph S. Whiteley was alive April 3, 1874, he having been seen on the 16th day of January, 1874, alive and apparently well, the presumption is that he was alive on the 3d day of April, 1874, and this presumption will control until it is overthrown by competent proof, and the fact is established by evidence that he died at an earlier day.” Had the action been commenced and tried prior to the expiration of the seven years following such disappearance, a presumption of such continuance of life might properly have been indulged, for then it would have been incumbent upon the plaintiff to prove either by direct evidence or by facts and circumstances-- First, that he was dead; and, secondly, that such death occurred prior to April 3, 1874, or, in other words, during the life of the policy. But by...