McCormick v. Woodmen of the World

TYLER, P. J.

This action was brought to recover upon a benefit certificate issued by defendant company. Plaintiff is the wife and sole beneficiary of one Fasty M. McCormick, a member of defendant society, an unincorporated fraternal organization.

The action was commenced on the twentieth day of November, 1920, and is one of the so-called “disappearance” eases. It appears from the record that Fasty McCormick became a member of the society on the thirty-first day of December, 1911. At that time the benefit certificate here

[569]

sued upon was issued to him. He expressly, and in writing, accepted the same subject to the conditions and terms therein specified. Among these conditions was one which provided that the absence or disappearance of a member holding the certificate from his last-known place of residence for any length of time should not be sufficient evidence of his death, and that no right should accrue under such a certificate to a beneficiary or beneficiaries, nor any benefits be paid until proof had been made of the death of said member, while in good standing. Another condition provided that the beneficiary was entitled to the sum of $1,500 if the insurer died within one year from the date thereof, $2,250 if death occurred within two years, and $3,000 if death occurred two years thereafter.

McCormick disappeared on the second day of July, 1913, and has not been seen nor heard of for more than seven years, though diligent search was made to ascertain his whereabouts, and plaintiff claims that he is dead. Judgment was rendered in her favor for $3,000, the full amount of the certificate, and defendant appeals. Appellant contended below, and does here, that the disappearance clause in the certificate bars recovery, and also that respondent is not entitled to the full amount of the policy, but is only entitled in any event to partial recovery.

[1]

The record contains no direct proof that McCormick is dead, and in fact no such claim is made, plaintiff relying solely on the circumstance that the insured has been absent and neither seen nor heard from for more than seven years, and is therefore presumed to be dead. (Subd. 26, sec. 1963, Code Civ. Proc.) It is conceded, as indeed it must be, that if the disappearance clause in the contract is valid and binding, it is conclusive against plaintiff and no recovery can be had thereon. Respondent claims in support of the judgment, however, that the clause is against public policy and is violative of the laws of the state and contrary to the terms of the policy itself. The attempt of beneficial societies to adopt a by-law or contract relating to disappearance cases, and to control the rule of evidence with respect to the presumption of death, has been fully considered and discussed by the courts of various jurisdictions. There is . considerable variance in the views of those courts upon the question. In some of