Opinion
October 13, 1937.
October 27, 1937.
Insurance — Life insurance — Accidental death — Evidence — Sufficiency — Circumstantial — Specific peril — Recovery of body — Drowning — Disappearance — Presumption of continuance of life.
1. In an action by the beneficiary on a policy insuring against accidental death, the death of insured need not be proved beyond a reasonable doubt, a fair preponderance of clear and convincing evidence, direct or circumstantial, being sufficient to prove the fact of death, or the cause thereof.
2. The presumption of life during seven years following the disappearance of a person can be overcome by satisfactory and sufficient proof of circumstances of specific peril, of a nature that might prevent the recovery of the body, to which the missing person was subjected at the time he was last seen or heard of.
3. Evidence held sufficient to warrant a finding that the insured was subjected to a specific peril at the time of his disappearance and that his death was the result of accidental drowning while swimming at a public bathing beach during the time life guards were on duty, which was the risk insured against by defendant's policy, although decedent's body was not recovered.
4. Cases where satisfactory and sufficient evidence was lacking, or where the beneficiary elected to rely on the presumption of death arising seven years after the unexplained disappearance of the insured rather than attempt to prove that the latter died on a certain date within the seven years, were distinguished.
Appeal, No. 164, Oct. T., 1937, from judgment of M.C. Phila. Co., Dec. T., 1935, No. 512, in case of Laura H. Herold v. Washington National Insurance Company.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, JAMES and RHODES, JJ. Judgment affirmed.
Assumpsit on life insurance policy.
Verdict and judgment for plaintiff.
The facts are stated in the opinion of the court below, CRANE, J., as follows:
"Defendant issued its policy insuring plaintiff's husband against accidental death and particularly for death `(d) The result of accidental drowning while swimming at a public bathing beach during the time that a life saver is on duty, and not otherwise.'
"About 4:30 p.m. on July 7, 1935, insured was last seen swimming in the Ocean in front of the President Hotel, Atlantic City, where two life guards were on duty. The testimony was to the effect that insured was never seen to come ashore nor seen elsewhere thereafter. Suit was brought by plaintiff to recover the amount due under the policy, and from the judgment entered on verdict in her favor the present appeal has been taken.
"This interesting case took four days to try and involved lengthy expert testimony which we deem it unnecessary to discuss.
"While it is true that seven years have not elapsed since the date of insured's disappearance, so as to invoke the legal presumption of death, this rule of law has a well recognized exception. The exception being that the presumption of life during seven years following disappearance can be met and overcome by proof of circumstances of specific peril to which the person disappearing was subjected. See Continental Life Insurance Co. v. Searing, 240 F 653 (CCA 3, 1917). In 37 Corpus Juris, s. No. 442, p. No. 639, n. 51-53, the controlling principle of law is set forth as follows:
`The death of insured need not be proved beyond a reasonable doubt, a fair preponderance of clear and convincing evidence, direct or circumstantial, being sufficient to prove the fact of death, or the cause thereof.'
"In Continental Life Insurance Co. v. Searing, supra, the evidence was that the insured was last seen entering the surf at Atlantic City; that he had high blood pressure and had undergone physical exertion prior to going in the surf, and this was held sufficient evidence to go to the jury.
"In Watkins v. Prudential Insurance Co., 315 Pa. 497, our own Supreme Court held:
`The operative facts of the insurance policy sued upon were "external, violent and accidental means" causing the insured's death, and any evidence, whether direct or circumstantial, that tends to prove the operative facts, is admissible. If there are in evidence credible facts or circumstances or both from which the jury may infer legitimately that the insured's death resulted from accidental means, plaintiff is entitled to recover.'
"In Pfeifer v. Supreme Tribe of Ben Hur, 191 Mo. Ap. 38, 176 S.W. 710, defendant appealed from judgment entered for plaintiff in an action on a policy of life insurance. In that case the facts of death were that decedent, a family loving man, went on a fishing trip with his son. The son last saw him crossing the river in a skiff to collect a debt from a friend. As his father neared the shore he saw two men shoot, heard his father groan and never saw his father again. The son was unable to follow and investigate because of sickness and bad weather. Another witness saw two men in a skiff towing another skiff with a dead man in it. This evidence was held sufficient and the verdict for the plaintiff was affirmed.
"We understand the law applicable to the facts in the instant case to be that where insured's disappearance is accompanied by circumstances which subjected him to a specific peril, his death becomes a question of fact for a jury.
"In the present case there was testimony that at the time and place insured went in to swim, there was a very rough surf and a strong undertow such as would make it difficult for a person swimming therein to survive, and we have the insured last seen swimming out to sea in such dangerous surf. While an experienced swimmer, insured had not been in swimming for a year, during which time he had added forty pounds to his weight. The evidence was to the effect that he was a happily married man, had just ordered a new automobile, which at the time of his disappearance had not been delivered, and had secured a new position to which he was to report the following day.
"In our judgment the jury were justified in finding that the insured was subjected to a specific peril at the time of his disappearance and that his death was the result of accidental drowning while swimming at a public bathing beach during the time life savers were on duty, which was the risk insured against by defendant's policy."
Defendant appealed.
Error assigned, among others, was refusal of judgment n.o.v.
George H. Detweiler, for appellant.
J. Kennard Weaver, with him Wilhelm F. Knauer, for appellee.
Argued October 13, 1937.
The opinion of the learned court below, by Judge CRANE, as printed in the Reporter's Statement, sufficiently answers the assignments of error which relate to the submission of the case to the jury, the refusal of binding instructions on the merits and the refusal to hold that the action was prematurely brought because instituted before seven years had elapsed from the date of the alleged accidental death. To the cases cited in the opinion, supporting the action of the trial judge, may be added, Sunny Point Packing Co. v. Faigh, 63 Fed. (2d) 921, 924; The San Rafael, 141 Fed. 270, 279; Harvey v. Fidelity Casualty Co., 200 Fed. 925, 928; Fidelity Mutual Life Ins. Co. v. Mettler, 185 U.S. 308, 316.
Circumstances, tending to show that the insured was subjected to specific peril or serious danger on the day he was last seen or heard of, were given in evidence which, if believed by the jury, were sufficient, in our opinion, to support a finding that he was accidentally drowned on July 7, 1935, although his body was not recovered. In that event, it was not necessary to wait seven years before bringing suit, and the case was one of fact for the jury. The decisions of our Supreme Court and of this Court relied on by appellant are easily distinguishable. They relate to cases where satisfactory and sufficient evidence that the insured had been subjected to serious peril of a nature that might prevent the recovery of the body was lacking, or the beneficiary elected to rely on the presumption of death arising seven years after the unexplained disappearance of the insured rather than attempt to prove that the latter died on a certain date within the seven years.
As to the other matters assigned for error, we find nothing improper in a trial judge suggesting to counsel for the plaintiff, on the direct examination of his own witness, not to go into matters not necessary to make out his case — "Make out a prima facie case and stop". A trial judge's functions are not limited to those of a mere umpire.
Judgment affirmed.