Mannheimer v. Independent Order Ahawas Israel , 145 N.Y.S. 74 ( 1914 )

Seabury, J. (concurring).

I concur in the view that the order setting aside the verdict of the jury rendered in favor of the plaintiff should be reversed and the verdict reinstated.

The methods prescribed in the constitution of the defendant, by which the fact of death was required to be proved, are applicable only where that fact is susceptible of that manner of proof. In this case it is impossible to present such proof, and the records which the constitution of the defendant require to be produced, and which would ordinarily be available, are not in existence. Under these circumstances it is obvious that the plaintiff could not produce them, and it would be unreasonable to so construe the provisions of the defendant’s constitution as to require their production. If the contract of insurance contemplated, as I think it did, that loss should accrue upon the death of the insured and did not in terms exclude liability where the death occurred under such circumstances as to make the presentation of the proof specified in the constitution of the defendant impossible, then the parties to the contract could not have contemplated that the proofs of death ordinarily available and required should be presented in such a case.

A different question would be presented if the contract of insurance provided that death should not be presumed from absence or disappearance (Kelly v. Supreme Council, 46 App. Div. 79); or that disappearance should not be evidence of death until a time specified had expired (Porter v. Home Friendly Society, 114 Ga. 937), or contained any other substantially similar provision.

There being no such provision in the contract, loss accrued upon the death of the insured. 25 Cyc. 874.

The plaintiff proved not only the absence of the insured for a period longer than seven years, but also that diligent efforts had been made to find him and that these efforts had been unsuccessful and that no tidings of the insured have been received by his relatives and friends during that time. These circumstances, in the absence of any evidence to the contrary, gave rise to the presumption that the insured was dead. This presumption was one of fact, and the finding of the jury that the insured was dead was warranted under the circumstances disclosed.

There is no arbitrary rule as to the duration of the absence which gives rise to the presumption of death, although by analogy to the time fixed in certain English statutes (1 Jac. 1 C. II, § 2; 19 Car. II, C. 6, § 2), the courts have generally considered that an absence of seven years, there being no circumstances which tended to negative the inference, gave rise to the presumption of death. Merritt v. Thompson, 1 Hilt. 550; 18 Cyc. 298.

It is urged by the defendant that the insured may be alive and that while this possibility exists it should not be required to pay the amount of the policy. The evidence does not negative the possibility that the insured is still alive, but it furnishes strong reasons to believe that he is dead. As was well stated by Judge Daly in Merritt v. Thompson, supra: “ The question is not whether it is possible that the defendant may be alive, but whether the circumstances of this case do not warrant that strong probability of his death upon which a court of justice should act * * *. Courts of justice do not allow the consideration of possibilities to outweigh a case of strong probability, but adopt and act upon those presumptions which seem most in accordance with the ordinary and usual course of events. Presumption, founded in a reasonable probability, must prevail against mere possibilities, for, were it otherwise, the conclusion could never be arrived at that a man was dead, until the natural limit of human life had been reached.”

Bijur, J., concurs.

Order reversed, with costs.