Wilks v. Mutual Aid Union

WOOD, J., (after stating the facts). (1) The only contention made by the appellant here is, that the verdict was contrary to the evidence. Section 3081 of Kirby’s Digest provides as follows: “Any person absenting himself beyond the limits of this State for five years successively shall be presumed to bo dead, in any case in which his death may come in question unless proof be made that he was alive within that time. ’ ’ The phraseology of the statute is somewhat ambiguous but the trial court correctly interpreted its meaning in its instruction No. 2. “Any person” as used in this statute means any person who is a resident of this State and who absents himself from his home or residence beyond the limits of the State for a period of five successive years and who has not been heard from by near relatives, friends, or neighbors, those who would naturally make inquiry concerning his whereabouts and who would most likely receive communication from him and be in a position to know whether or not he was living. If he has not been heard from by these or others, his death will be presumed unless there is proof to the contrary. (2) In view of the nomadic habits of H. M. Wilks as disclosed by the evidence it can not be said as a matter of law that he had anything like a permanent home or residence in this State. It was a question for the jury under the evidence adduced as to whether or not H. M. Wilks was a resident of the State in the first place, and in the second place as to whether or not, if a resident, he had been absent from the State for a period of five successive years without being heard from by those who would most likely hear from him. The proof on the part of the appellant did not show either of these facts conclusively. The issues were, therefore, for the jury, and the judgment is correct, and is affirmed.