Metropolitan Life Insurance Co. v. Fry , 184 Ark. 23 ( 1931 )

STATEMENT OF FACTS.

Charles L. Fry and Jennie B. Fry, his wife, brought this suit against the Metropolitan Life Insurance Company to recover upon two policies of life insurance issued by it upon the life of John N. Fry and for an amount overpaid in premiums upon said policies.

The material facts may be stated briefly as follows: On April 22, 1918, the Metropolitan Life Insurance Company issued an insurance policy upon the life of John N. Fry in the sum of $125. The estate of the insured was the beneficiary in the policy. On the 17th day of August, 1920, said insurance company issued a life insurance policy upon the life of John N. Fry in the sum of $1,000, and his parents, Charles L. Fry and Jennie B. Fry, were named as beneficiaries. All the premiums on the $1,000 policy were paid by Charles L. Fry down to and including the month of August, 1930. All the premiums on the $125 policy were paid by said Charles L. Fry down to October 20, 1930. Since July 1, 1930, there has been paid on said policies by said Charles L. Fry the sum of $50. According to the testimony of Charles L. Fry, he has lived in Russellville, Arkansas, since July 27, 1921. The insured, John N. Fry, was his son and married in the town of Russellville some time in April, 1923, and lived there until his disappearance in the latter part of June, 1923. John N. Fry was twenty-one years of age when he left Russellville on the 21st day of June, 1923, to go to Morrilton, Arkansas, to collect some premiums and solicit insurance for the National Life Accident Company, for which he was working at the time. Witness found out that his son did not return from Morrilton as expected and went down there for the purpose of making inquiries as to his whereabouts. He was informed by the operator of a cafe at Morrilton that John N. Fry had left with him his insurance book with the statement that he would return for it the next week. Witness was informed by the proprietor of the cafe that his son had left on a bus going towards Little Rock, Arkansas. He made diligent inquiry and was not able to find out the name of the driver of the bus or his whereabouts because he had left the service of the company, and no record had been kept of him. Witness had formerly lived at Newport and in Corning, Arkansas, and made inquiries there about his son. He also made inquiries at Little Rock, Arkansas, and from relatives who resided in other parts of Arkansas and in other States, but was unable to learn anything about his son. He completely disappeared from all his associates; and, although diligent inquiry was made by his father, nothing was heard about him. The district manager of the insurance company for which John N. Fry worked went to between forty and fifty towns in the State of Arkansas in the course of his work and during all his travels made diligent inquiry about John N. Fry and was unable to learn anything concerning him. John N. Fry was on good terms with his wife and had no apparent cause for leaving her. Something over a year after his disappearance, she secured a divorce from him on the ground of desertion. John N. Fry had put up a cash bond with the insurance company for which he worked but owed them a small amount on collections which he had failed to turn in at the time of his disappearance. The unpaid balance amounted to about $40, and this was paid to the insurance company by his father. His father kept up his payments on his insurance policies upon the assurance of an agent of the company that as beneficiary he would be paid the amount of the policy at the end of seven years. At the end of the five year period from the time of the disappearance of his son, Charles L. Fry entered into negotiations with the company looking to the payment of the amounts of the policies. He overpaid premiums to the company in the sum of $50.

The case was tried by the court sitting as a jury which found in favor of the plaintiffs, and judgment was rendered accordingly. To reverse that judgment, the insurance company has prosecuted this appeal. (after stating the facts). The common-law rule was that, after the lapse of seven years without intelligence concerning a person, the presumption of life ceased, and the burden of proof devolved upon the other party to show that he was alive. Greenleaf on Evidence (15th ed.), 41; and case note to L.R.A. 1915B, p. 729. In this connection it may be stated that the presumption relates to the fact of death and not to the time of death. Davie v. Briggs, 97 U.S. 628.

Our statute on the subject is contained in 4111 of Crawford Moses' Digest, which is as follows:

"Any person absenting himself beyond the limits of this State for five years successively shall be presumed to be dead, in any case in which his death may come in question, unless proof be made that he was alive within that time."

In Wilks v. Mutual Aid Union, 135 Ark. 112,204 S.W. 599, this section of our statute was construed to mean that any person, a resident of this State, and who absents himself from his home or residence beyond the limits of the State for five successive years and who has not been heard from by near relatives, friends, or neighbors, who would naturally make inquiry concerning his whereabouts and who would most likely receive communication from him and be in a position to know whether or not he was living, will be presumed to be dead unless there is proof to the contrary.

The same construction was recognized in Burnett v. Modern Woodman of America 183 Ark. 729, 38 S.W.2d 24; but recovery was denied in that case because it was not shown that the insured had a residence in this State; and the statute therefore did not apply.

On the part of the appellant insurance company, it is insisted that the judgment must be reversed in this case because there is no showing made by appellees that the insured ever left the State of Arkansas. It will be observed that the case was tried by the court sitting as a jury, and that the court found the issues in favor of the plaintiffs. The evidence shows that the insured left his home at Russellville, Arkansas, to go to Morrilton, Arkansas, for the purpose of collecting and soliciting insurance. He expected to return home within a day or two and has remained away since that time, which was during the latter part of June, 1923. No intelligence has been received from him; and, although diligent search and inquiry were made by his father, his whereabouts have never been ascertained. His father inquired from friends and relatives in other portions of the State where they had lived and was informed that nothing had been heard from or of him. The district manager of the insurance company for which he worked, visited forty or fifty towns in the usual course of business and in each of them made inquiry about the whereabouts of John N. Fry. So far as can be ascertained from the record, there was no occasion for him to leave his wife to whom he had been recently married. He was not in debt, and no cause of his disappearance was shown. In finding that he had gone beyond the limits of the State and disappeared for the period of five successive years, the court might properly take into consideration all the facts just recited as well as facts of which the court might take judicial notice such as the size and population of the State of Arkansas, the number and population of the various towns, and other matters which might make it more or less difficult to conceal one's identity in the State. The proof of absence from the State, like the fact of death, may rest upon circumstantial evidence. Neither death nor the fact of absence beyond the limits of the State can be inferred from the mere fact of disappearance; but when all the facts and circumstances connected therewith as recited above are considered, we think the court was warranted in finding that the insured had absented himself beyond the limits of the State for five successive years, and that this brought a presumption of death under the statute. Kennedy v. Modern Woodmen of America, 243 Ill. 560, 90 N.E. 1084, 28 L.R.A. (N.S.) 181; and Fidelity Mutual Life Assn. v. Mettler, 185 U.S. 308, 22 S. Ct. 662. See also Bacon on Life Accident Insurance, page 1594, 648, and Cooley's Briefs on Insurance, (2d ed.) vol. 6, pp. 5167-5168.

It is next contended that the court erred in allowing the plaintiffs to join in one action the suit on the two different policies. It is pointed out that, while Charles L. Fry and John N. Fry are named as the beneficiaries in the $1,000 policy and may be entitled to recover on that policy, the $125 policy is payable to the estate of the insured, John N. Fry, and that they have no right to recover on it. Under our statute relating to the law of administration, where a person dies leaving only adult heirs and no creditors, they may take possession of the decedent's estate without administration. Crawford Moses' Digest, 1. Our statute also favors the bringing of suits by parties in interest. The undisputed proof shows that John N. Fry's wife secured a divorce from him after he had disappeared for something over a year, and that she has no interest whatever in his estate. His parents, Charles L. Fry and Jennie B. Fry, were entitled to his estate, and, there being no creditors, were entitled to maintain this action. Metropolitan Life Ins. Co. v. Fitzgerald, 137 Ark. 366, 209 S.W. 77.

The court was also warranted in finding that the plaintiff, Charles L. Fry, overpaid the premiums on said policies in the amount of $50, and that plaintiffs were entitled to recover that sum.

We find no prejudicial error in the record, and the judgment will therefore be affirmed.