Mutual Life Ins. Co. of New York v. Blodgett (126 F.2d 273, 1942)

PARKER, Circuit Judge.

This is an appeal from a judgment for plaintiff on a policy of insurance issued by the defendant company on the life of one Clifford N. Blodgett of Morgantown, West Virginia. Recovery was sought by his wife, the beneficiary under the policy, on the ground that he had been absent from home without having been heard of for more than seven years and was therefore presumed to be dead. Defendant contended that the circumstances surrounding insured’s disappearance were such that the conclusion of death should not be drawn from his absence and the failure of his family to hear from him, and introduced evidence tending to show that he had been seen alive at Oroville. California, within the seven year period. The case was submitted to a jury; and from judgment on an adverse verdict the defendant has appealed, contending (1) that the court should have directed a verdict in its favor, and (2) that the court erred in its charge in confining the issue before the jury to whether the insured had been seen alive at Oroville within the seven year period. The rights of the parties are governed by the law of West Virginia, which has a statute relating to the presumption as to death arising from seven years absence. That statute, W.Va.Code, Ch. 44, Art. 9, Sec. 1, is as follows:

“When a Person Presumed to Be Dead. —In case any person has been or shall be absent for seven or more successive years from the place of his last domicile within this State; or, having been a resident of this State, has heretofore gone from and has not returned to this State for seven or more successive years; or, being a resident of this State, shall hereafter go from and not return to this State for seven or more successive years; or, being a nonresident of this State and being entitled to, or having an interest in, property in the State, has been or shall be absent for seven or more successive years from the place of his last known domicile; and in any of the foregoing cases shall for such period of time have been, or shall be, unheard of by those who, had he been alive, would naturally have heard of him; such person shall, in any case where his death shall come in question, be presumed in law to be dead, in the absence of proof to the contrary, or unless proof be made that he was alive within that time.”

The facts as developed by the testimony are as follows: Insured was a mining engineer who had spent much time in South America but had returned to Morgantown, West Virginia, in 1929, where he resided with his wife and two daughters. Shortly after his return he lost his savings through speculation in stocks and in 1930 went to Kentucky looking for work, which he failed to find. He returned home in July 1931 but left again in a short time looking for work and was never seen by his family or by any of his relatives thereafter. At that time he was forty-nine years of age and in good physical health although mentally despondent and depressed. Although he had correspond with members of his family regularly during prior absences, they had only three letters from him after his departure in 1931: one under date of October 24, 1931, from Ripley, New York, one under date of February 2, 1932, from Marshall, Illinois, and one in January 1933 from Los Banos, California. All of these show that insured was unable to find work, was walking and hitch-hiking about the country, was suffering much hardship and was greatly discouraged and mentally depressed. The letter from Marshall, Illinois, shows also an attitude of resentment towards what he intimates was the attitude of his wife and daughters toward him. In June 1933 one of his daughters received a letter from a person signing his name as A. J. Cavin, which bore the postmark of Oroville, California, and stated that the writer and insured had been together for nearly a year, but that insured had left two months before to go to Sacramento and had not been heard from since, and asked whether the family had any information as to where insured might be found. Four other letters were received from Cavin, from which it appears that Cavin had been on the lookout for insured and had taken a number of trips trying to find him, but had heard nothing of him. One of these letters refers to the fact that insured had talked much to Cavin about his wife and daughters. Insured’s father, who lived at Littleton, W. Va., testified that he had heard nothing from insured since he left home in 1931.

Plaintiff made diligent inquiry of chiefs of police and others in localities where she thought her husband might be found, sending them descriptions and photographs of him, but without result. When she learned he was in California in 1933, she wrote to the chief of police at Los Banos, who was unable to locate insured but directed her to communicate with the State Division of Criminal Identification and Investigation at Sacramento. She did this and received no information but a promise that she would be informed if any information of the whereabouts of insured should be received. Nothing further was heard from this. As early as 1932, plaintiff communicated to defendant the fact of her husband’s disappearance but continued to pay premiums on the policy until he was declared dead by the County Court of Monongalia County, West Virginia, in the year 1940.

In 1941 an investigator for defendant discovered two witnesses who testified that a Cliff Blodgett was registered at the West Virginia Inn, a tourist camp at Oroville, California, in December 1935. The proprietress of the camp, an elderly woman, testified that she registered upon her record the name of Cliff Blodgett, whom she was unable to identify other than that he was a tall, slim, smooth-faced man. Another woman, a waitress in a local restaurant, testified that she had occupied a room in a cabin, another room of which was occupied by the man giving his name as Cliff Blodgett, that she had had several conversations with him, and that in the course of their conversations he told her that he was from West Virginia and had traveled in South America and showed her pictures of South American oil fields. She testified, also, that a picture of insured which was shown her looked like the man whom she had seen and talked to at the West Virginia Inn. Her testimony was weakened, however, by admissions that she had previously identified pictures of other persons as resembling the man registered at the camp, that in her description she failed to mention a noticeable scar in the left eyebrow of the insured, and that she described the man whom she saw as of neat appearance, whereas the appearance of insured had never fitted that description.

The motion for directed verdict was based upon two grounds: (1) that the evidence showed that the relationship between insured and his family was such that they would not “naturally have heard of him” and that consequently their failure to hear of him within the seven year period was without probative force under the statute; and (2) that the evidence conclusively established that insured was seen alive within the seven year period. Neither of. these grounds can be sustained. There was evidence, as stated, not only that plaintiff and her daughters had not heard of insured after he left Oroville for Sacramento early in 1933, more than seven years before suit was instituted, but also that his father had not heard of him during this period; and the jury might well have concluded that, had he been alive, some of them would naturally have heard of him. He wrote to his wife and daughters three times after leaving home in 1931; and while the letter from Marshall, Illinois, in 1932, shows that he felt aggrieved at their attitude toward him, it appears that he wrote to them later from Los Banos, California, and one of the letters from Cavin states that insured talked much about them and shows that he must have had them in mind. It is hardly conceivable that, had he been alive, he would have let seven years pass without communicating with them in some way. Added to this is the fact that plaintiff from time to time during the seven year period actively sought information with regard to insured and that she enlisted the aid of the Division of Criminal Identification and Investigation of the State of California without result. The testimony of the two witnesses as to • the presence at Oroville, California, in 1935, of the man giving his name as Cliff Blodgett and answering generally to the description of the insured raises a question for the consideration of the jury; but we cannot say that it is so conclusive as to justify the direction of a verdict for the defendant. Not only was the question of the credibility of these witnesses for the jury, but so also was the question as to the identity of the man whom they described.

We think, however, that the learned trial judge erred in his charge in restricting the consideration of the jury to the question as to whether the insured was seen in Oroville, California, in 1935. As there was proof from which an inference contrary to the inference of death ordinarily arising from unexplained absence of seven years could have been drawn, as well as affirmative proof tending to show that insured was seen alive within that period, the jury should have been allowed to weigh all the circumstances in evidence, including the natural inference to be drawn from the fact that his immediate family had not heard of him for more than seven years, and to say in the light of all the evidence whether his death had been established, the burden being upon plaintiff to establish it. Instead of this, the jury were given the following instruction, to which the defendant excepted, viz. :

“The simple question of fact that you must decide is, Do you believe from a preponderance of the evidence introduced as hereinbefore defined, including in your consideration the depositions taken upon' behalf of the defendants and read to you, that the person who occupied cabin No. 2y