Ewing v. Metropolitan Life Insurance , 191 Wis. 299 ( 1926 )

Vinje, C. J.

In reversing the judgment of the civil court the circuit court said:

“I cannot reach the conclusion which the trial court did that the absence of Mrs. Ewing is unexplained. Her age is such that she might very well be alive. She left because conditions at home were unsatisfactory. She has not corresponded with her husband because she informed him when she left he never would hear from her again. Some other evidence must be produced before the plaintiff can prevail.”

We think the circuit court missed the gist of the basis for the presúmption of death that "obtains in case a person is absent for seven years or more without intelligence or tidings from him. It is not necessary that the reasons for leaving home should be unexplained in order to raise the presumption of death. It is sufficient that no intelligence or tidings from the absent one has been received for seven years or. more by those to whom such intelligence would be most likely to be given. In Miller v. Sovereign Camp W. O. W. 140 Wis. 505, 122 N. W. 1126, the rule as stated in Greenleaf on Evidence is adopted and approved, and quoted thus:

“After the lapse of seven years, without intelligence concerning the person, the presumption of life ceases, and the burden of proof is devolved on the other party. ... It is sufficient if it appears that he has been absent for seven

years from the particular state of his residence without having been heard from.” 1 Greenleaf, Evidence, § 41.

The proof in this case meets the requirements of the rule. In addition to the cases cited in the Miller Case, see Page v. Modern Woodmen of America, 162 Wis. 259, 156 N. W. 137; White v. Brotherhood of Locomotive Firemen, 165 Wis. 418, 162 N. W. 441. It has been held that the presumption of death arising from an absence of seven years without being heard from is not'rebutted by proof that the absentee was a fugitive from justice. Only proof that he was alive within the period will rebut it. Parker v. New York L. Ins. Co. (Miss.) 107 South. 198; but see note to this case in 44 A. L. R. 1488.

While it is true that an explanation why a person leaves home is in a sense an explanation of his absence, yet the rule is satisfied by a lack of intelligence or tidings for seven years even -if a reason for the absence is shown. Were it otherwise the presumption would never attach where any reason for leaving is given, and in’ such case no recovery could ever be had except upon proof of actual death. In most cases some reason for leaving can be given, but that does not prevent the presumption from becoming effective where no intelligence or tidings have been received for over seven years.

In our state plaintiff need show no diligent search. It is enough that he shows absence and lack of intelligence for seven years. Miller v. Sovereign Camp W. O. W. 140 Wis. 505, 122 N. W. 1126.

By the Court. — Judgment reversed, and cause remanded with directions to enter judgment for plaintiff.