Connor v. New York Life Insurance , 166 N.Y.S. 985 ( 1917 )

Blackmar, J.:

The judge charged the jury to the effect that in order to render a verdict for the plaintiff they must find that the assured came to his death by drowning on August 11, 1904, and that if proof of death rested on the presumption arising from seven years’ absence, the death must be held not to have taken place until the end of that period.

The death of the assured was not established by finding his " effects in the bath house and office. (Nelson v. Masonic Mutual Life Assn., 57 App. Div. 214.) If the seven years’ absence was established as a fact, a presumption of death arose. The general rule regarding the presumption arising from seven years’ absence is that the death took place at the end of this period. (Lawson Presump. Ev. rule 43.) The English rule, followed in this State in McCartee v. Camel (1 Barb. Ch. 455), is that the presumption is of death only, and not of the time of death, which must be shown by other evidence by the party carrying the burden of proof. Later the rule was otherwise stated in Eagle’s Case (3 Abb. Pr. 218), and that decision is in accord with the rule in other States. (.Executors of Clarke v. Canfield, 15 N. J. Eq. 119; Bradley v. Bradley, 4 Whart. 173; Matter of Board of Education of New York, 173 N.Y.321; Barson v. Mulligan, 191 id. 324.) So the general rule may now be stated to be that seven years’ absence creates a presumption that death took place at the end of that period.

But we think that reason and probability require that the rule be modified so that if seven years’ absence follows a catastrophe, occurrence or hazard whereby the absent one was subjected to peril of his fife of such a character that the evidence of his death might be destroyed with death itself — as for instance death in a conflagration, or by drowning — the inference of fact may be drawn that the death occurred at the time of such peril. The presumption that the death occurred at the end of the seven years obtains only by the necessity of the case in the absence of evidence indicating death at another time. When there is such evidence, the necessity for presuming that death occurred at the end of the period no longer exists.

Assuming, then, that the evidence established seven years’ absence, upon which subject as a question of fact we do not think it necessary to express an opinion, the presumption of death follows; and the evidence of finding the clothes of the insured in a bath house, and a ring and a pin in the office, would permit a finding that the death took place on August 11, 1904; and this is not opposed to the doctrine of the Nelson Casé (supra), where the plaintiff’s case was not aided by the presumption arising from the seven years’ absence.

Without a more minute analysis' of the evidence upon which the presumption rests, we may assume for the purposes of this decision that the jury were justified in finding that the assured came to his death on August 11, 1904.

The plaintiff is entitled under the policy to $1,000 immediately upon receipt and approval of proofs of death of Frederick Winnington, if such death shall occur before the end of the accumulation period of the policy. There is no time fixed within which proofs of death must be submitted. There is no obligation until such proofs of death are submitted and are approved or should be approved. There is a legal presumption, from the lapse of seven years, that death occurred, and there are circumstances from which the time of death could be inferred. Until death could be presumed from the seven years’ absence, the time of it could not be inferred from circumstances. The' plaintiff, therefore, was in no position to make proofs of death until the presumption was available; and until she made proofs that were approved or should be approved, no cause of action existed, and necessarily the Statute of Limitations did not begin to run.

The complaint should, therefore, have been dismissed on the ground that the action, brought before proofs of death were furnished, was premature. There is nothing in the evidence from which the jury could find that the defendant waived proofs of death being made at the end of the seven-year period. Assuming that the agent with whom plaintiff talked soon after August 11, 1904, had authority to waive proofs of death, he did not do so, but suggested a postponement until the end of the seven-year period. Obviously, proofs of death should include evidence of absence.

The judgment and order of the County Court of Kings county should be reversed, with costs, and the complaint dismissed, with costs.

Jenks, P. J., Stapleton, Rich and Putnam, JJ., concurred.

Judgment and order of the County Court of Kings county reversed, with costs, and complaint dismissed, with costs.