Minnis v. Equitable Life Assurance Society

LANGDON, J.

—This action was brought to recover on a life insurance policy issued by defendant to Emil Lesser, plaintiff’s intestate. From a judgment entered on a verdict in plaintiff’s favor for the sum of $1,950.40, defendant has appealed.

Defendant issued the life insurance policy on February 12, 1894, upon the life of Emil Lesser in the sum of $3,000. Lesser paid the annual premium up to and including the premium due on February 9, 1915, and no payments of premiums were made since that date. On January 30, 1914, Lesser borrowed from the defendant the sum of $987, to be

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repaid on February 9, 1915, with interest at five per cent, and assigned the policy as collateral security for the loan. On February 9, 1916, defendant declared the policy lapsed for nonpayment of premium and, pursuant to its terms, converted it into a paid-up policy of $1,764. On April 5, 1919, defendant foreclosed the policy for nonpayment of the principal and interest of the loan, the amount of the principal sum of the loan and accrued interest totaling at that time a sum slightly in excess of the paid-up value of the policy.

In 1915, Emil Lesser disappeared, having been seen last at Venice, on November 2, 1915. On that day he went down to the ocean with the expressed intention of going in bathing. He was seen last dressed in his street clothes, within a few feet of the bathing house, talking and laughing with another man. On that evening his clothes and jewelry were found in the bathhouse. The body was never recovered and inquiries made in this and other states revealed no trace of him.

On April 10, 1916, defendant was notified that Emil Lesser was dead and was offered proofs of death in the form of affidavits as to the facts surrounding the disappearance of insured.

On August 31, 1916, the defendant having refused to pay the claim, an action was brought in the superior court of Los Angeles county by Alice Lesser, the surviving wife, as administratrix of the estate of Emil Lesser, deceased, against defendant to recover the sum of $3,000 upon the policy. The complaint alleged that Emil Lesser had been drowned while bathing in the ocean at Venice, on November 2, 1915, and the answer denied that Lesser was dead. After a trial lasting for five days, in which proof of death was sought to be made by circumstantial evidence, the trial court made a finding: “That it is not true that on the 2nd day of November, 1915, or at all, the said Emil Lesser-was accidentally, or at all, drowned . . . that the plaintiff has failed to prove by a preponderance of the evidence that said Emil Lesser is dead and the court therefore finds that the said Emil Lesser is not dead. ...”