Hemingray insurance law case

Presumption of Death.

Presumption of death does not begin until the statutory period of seven years has expired, according to a recent decision in the Louisville Circuit Court. The insured had paid but a single premium at the time of his disappearance in 1896. Suit was brought by the wife, who was the beneficiary on the theory that the statutory period of seven years presumed that unexplained absence during that time meant death had actually taken place at any stated time within it. The point taken was somewhat unique in life insurance.

If the statute be construed as creating the presumption, after the lapse of seven years, that the death occurred at the beginning of that period, then the initial payment of June 1, 1896, carried the policy for one year, and the contract was in force in September, 1896. Presuming that Hemingray's supposed death occurred at about the time of his disappearance, September, 1896, the cause of action accrued immediately and would have been barred at the expiration of fifteen years, or in September, 1910, a year before this suit was filed. Union Cent. L. I. Co. vs. Spinks, 119 Ky. 261; South. Ry. News Co. vs. Fid. & Cas. Co., 26 Ky. L. R. 1217.

The petition, however, shows no facts from which any reasonable inference may be drawn that Hemingray died, if in fact he is dead, at any particular time. The Kentucky statute (section 1639) merely provides that when one has been absent continuously during seven successive years "he shall be presumed to be dead."

There is a line of cases holding that death is presumed to have occurred on the last day of the seven years. Reedy vs. Milliken, 166 Ill. 636.

The theory prevailing in Kentucky, however, is the sounder one held in England that when one leaves his domicile and is not heard of thereafter, the presumption that he is alive continues during seven years, at the expiration of which it ceases and is succeeded by the presumption of death. Mutual Ben. L. I. Co. vs. Martin, 108 Ky. 11.

Applying the statute to the case at bar, the only presumption is that Hemingray was dead September 23, 1902, at the expiration of the seven years. The petition shows that only the initial premium of June 1, 1896, was paid. There is nothing to show that any subsequent premiums were paid, except the inconclusive statement of plaintiff that Hemingray paid them all "during his lifetime." As they do not appear to have been paid during the seven years throughout which the presumption that Hemingray was alive continued, the policy lapsed. Mutual Ben. L. I. Co. vs. Martin, 108 Ky. 11.

Since the petition does not contain any statement that tends to show that Hemingray actually died prior to the date, September 23, 1902, when the presumption that he was alive ceased, nor any convincing statement that any premium, other than the initial one, was paid during that period, there is no cause of action stated. The motion for Judgment must, therefore, be overruled.

The position taken by the court is unquestionably the sound one. The burden of proof is on the beneficiary to prove death within the period covered by the premium paid. By an artificial legal rule seven years has been decreed to be such a period. To hold that death had occurred at any stated time within it would be to shift that burden on the company.