McLaughlin v. Northern Life Insurance

STURTEVANT, J. The plaintiff brought suit against the defendant to recover on two different life insurance policies. She framed her complaint in two counts. In each count she pleaded that Frank McLaughlin, her deceased husband, disappeared on the 13th day of October, 1926, and that she was informed and believed that he died on said date. The action was commenced on February 10, 1936. The defendant appeared and answered. It denied nearly all of the allegations set forth in the plaintiff’s complaint and set forth several affirmative defenses including a claim that the plaintiff surrendered both of said policies and that said policies were cancelled long prior to the commencement of said action. It also alleged that each cause of action was barred by the statute of limitations. The trial court- madé findings of fact in favor of the plaintiff on each and all of the issues and from the judgment entered the defendant has appealed.

The first point made by the defendant is that the evidence did not show that plaintiff’s husband died while the policies were in force. In presenting that point the defendant contends that while the evidence introduced by the plaintiff showed Frank McLaughlin disappeared October 13, 1926, and had not since been heard from, nevertheless the evidence did not show the date of the death of said McLaughlin. The [427]defendant does not set forth the evidence. The plaintiff concedes the point of law contended for by the defendant but claims there was substantial evidence from which the jury was justified in inferring death occurred while the policies were in force. In that behalf the plaintiff states: ‘ ‘ The time of death can be found to be the date of the disappearance or any time short of the seven year period, and to justify such a finding it is not necessary to produce an eye witness, or otherwise to show, that the absent one encountered within the period some specific peril likely to produce death.” (Estate of Christin, 128 Cal. App. 625 [17 Pac. (2d) 1068].) That there was substantial evidence supporting the plaintiff’s contention that her husband met death on or about October 13, 1926, she calls our attention to the following facts: The night before Frank McLaughlin disappeared, he had in his pocket a large amount of money in currency. He received a telephone call. The plaintiff answered the telephone. The person calling did not give his name but insisted on speaking to plaintiff’s husband. The party was a man who spoke with considerable foreign accent. Plaintiff’s husband went to the telephone and was heard to make an appointment with said party for the following morning at which time, according to the drift of the telephone conversation, he was to give said party employment as a solicitor. The next day Frank McLaughlin left his home at Yakima, Washington, driving his own automobile. Later that automobile was found. It was then at Wilmar, California. At that time it had attached to it a stolen license plate. The plaintiff also shows that at the time Frank McLaughlin left home he had in his safe deposit box his adjusted service certificate as a world war veteran. Although he was entitled to draw against said certificate, no claim was ever made thereon. Another fact was introduced in evidence which also had a tendency to support the plaintiff’s' contention. In an effort to settle her claim for insurance, the plaintiff called on Mr. Moore, the defendant’s agent at Portland. As a result of that conversation Mr. Moore stated he was going to the head office at Seattle and when he returned he would again take the matter up with her. When he returned Mr. Moore stated to her if she would deliver the $2,500 policy to him he would disclose absolute confidential news that her husband committed suicide and would tell her how, and when, and where