White v. Brotherhood of Locomotive Firemen

Kerwin, J. The findings set out in the statement cover all the issuable facts in the case. 1. It is strenuously contended by counsel for appellant that there is not sufficient evidence to support the finding to the effect that T. J. White died in the year 1901, three years prior to the death of his mother. It is argued that since there is no presumption of death because of no tidings until the expiration of seven years and because of a presumption of continuation of life, it is not established that White died so short a time after he was known to be alive and well. The well settled rule is that there is no presumption of death until the expiration of seven years after being heard from, and after seven years there is no presumption of either life or death at any particular time during the seven years in the absence of evidence raising such presumption. Whiteley v. Equitable L. A. Soc. 72 Wis. 170, 39 N. W. 369; Wis. T. Co. v. Wis. M. & F. Ins. Co. Bank, 105 Wis. 464, 81 N.W. 642; Miller v. Sovereign Camp W. O. W. 140 Wis. 505, 122 N. W. 1126. In the instant ease it is undisputed that White had been unheard of for more than seven years, and the material question is, At what particular time, during the seven years he was unheard of, did he die? This is a question of fact to [423] be determined by the trial court or a jury. Whiteley v. Equitable L. A. Soc., supra; Miller v. Sovereign Camp W. O. W., supra; Butler v. Supreme Court I. O. F. 53 Wash. 118, 101 Pac. 481; Tisdale v. Connecticut Mut. L. Ins. Co. 26 Iowa, 170. Tlie evidence tending to show that T. J. White died shortly after his disappearance is very strong and fully warranted the court below in finding that he died as found in 1901 and before the death of his mother, Ellen White. 2. The certificate in question and upon which this suit was brought provides: “All rights of action by the beneficiary . . . shall be absolutely barred unless proof of death as required by said constitution shall be made within sixty days from the time that said beneficiary has acquired knowledge of the fact of the death of said member. . . . Any action under this certificate ... by the beneficiary designated therein shall be absolutely barred unless such action shall be commenced in some court of competent jurisdiction within six months from the final rejection of the claim.” The court below found that the beneficiary named in the certificate had no knowledge of the death of White, and the defendant in its answer denied the death of White at the time alleged in the complaint or at any other time, and the court below found upon sufficient evidence that the secretary of the local lodge had knowledge of all the facts, and that the officers of the lodge advised plaintiffs to continue payment of the dues and assessments upon the certificate, which was done. ' Both parties considered the contract valid Up to the time action was commenced, and the defendant, therefore, should not be permitted to repudiate it under the established facts in the case. Palmer v. St. Paul F. & M. Ins. Co. 44 Wis. 201; Bennett v. Beavers R. F. Fraternity, 159 Wis. 145, 150 N. W. 181. 3. It is further argued by appellant that the plaintiffs cannot recover because of failure to comply with the by-laws [424] of the defendant company providing for a notice and certificate of death and showing receipt for the last quarter’s dues, etc. But an examination of these by-laws will show that in a case like the present it was the duty of the officers of the local lodge, under the circumstances of the case, to furnish this evidence to the company. In case of presumptive death a beneficiary cannot determine that death had resulted at any particular time. The facts with regard to the disappearance of White in 1901 were well known to the secretary of the local lodge and were communicated to the grand secretary of the association. In view of the established facts in this case no duty rested upon Ellen White to give formal notice to the order of the disappearance of her son, T. I. White. Kelly v. A. O. H. L. Ins. Fund, 113 Minn. 355, 129 N. W. 846. 4. It is further contended that all right of action was barred by the provision in the policy that any action thereunder should be absolutely barred “unless such action shall be commenced in some court of competent jurisdiction within six months from the final rejection of the claim.” The court below found upon sufficient evidence that the claim was finally rejected on the 19th day of November; 1914, and that the action was commenced within six months from that date. The established facts dispose of the appellant’s contention under this head. 5. Some contention is made to the effect that the cause of action is barred by the six- and ten-year statutes of limitation; also that the action should have been on a so-called 1901 certificate issued after the death of both T. J. White and his mother. These contentions are wholly without merit and do not require consideration. 6. The second cause of action sets up a claim to recover assessments paid by Ellen White after the death of T. J. White. Appellant contends, although we think not very seriously, that this money cannot be recovered. The amount [425] which the court below found plaintiffs are entitled to recover is $41.80, which amount was paid by Ellen White between the dates of death of T. J. White and Ellen White. We think it clear under the testimony and findings that the plaintiffs were entitled to recover this amount. We are convinced that the case was fairly tried, no prejudicial error committed, and that the judgment below is right and should be affirmed. By the Court. — Judgment is affirmed, with costs.