Tisdale v. Connecticut Mutual Life Ins. Co. lish a prima facie case, was determining the weight of defendant's evidence, and therefore erroneous. 12 Iowa, 450; 16 Md. 422 (21 U. S. D. 523); 9 Cal. 565; 7 Ind. 453. III. When the plaintiff has made out a prima facie case, the burden of proof is thrown upon the defendant, where it rests until he has fully overcome the plaintiff's evidence. 1 Greenleaf on Ev. §§ 33, 41; 18 Ala. 616; 30 id. 253; 36 Barb. 57; 16 Wis. 110; 9 id. 119. IV. The court in charging, that "no amount of probabilities, arising from continued absence or neglect to write, or from confidence in the character or habits of the person, or his previous declarations of intention, will be sufficient to warrant the presumption of death within seven years," misled the jury, in assuming that those were all the considerations shown in the evidence from which probabilities could arise pointing to death. Motives against absconding were shown. The strongest probabilities in reference to human affairs are drawn from motives 1. From all of the considerations in evidence, it is for the jury to say whether the presumption, or probable inference, is that the person is dead. 1 Phillips on Ev. (Cowen, Hill & Edwards' Notes, 1st Am. ed.) 599–613. 2. By isolating these considerations, and as to each, separately negativing the presumption of death, the court practically passed upon the weight of the evidence and forbade the jury finding death from the evidence of cir cumstances. 3. In this part of the charge the court misled the jury from the consideration of all the probabilities in a general result, by determining that each of the mentioned bases of probability was insufficient for a conclusion of death. V. The court, in charging the jury, that to warrant the presumption of death within seven years, such cir Tisdale v. Connecticut Mutual Life Ins. Co. cumstances as he mentioned (see page 1 of charge) must be proven, virtually charged the jury that none of plaintiff's evidence in rebuttal was admissible to prove death, because not tending to establish the circumstances he mentioned, which, we submit, is not the law. 1. Any and all circumstances which afford a reasonable conclusion of death, are admissible as evidence of the fact. Angell on Fire and Life Ins. § 351 and note; 6 Hurlstone & Norman, 838; 5 Cowen, 314; 2 Greenleaf on Ev. 278a, 279; 4 B. & Ald. 433; 1 Starkiẹ, 121; 1 Ga. 542, 543. Adams & Robinson and De Witt C. Cram for the appellee, In support of the judgment and rulings below, cited 23 Pa. 117; 18 Ohio, 375; 9 Iowa, 1; Detroit & Milwaukee Railroad Co. v. Steinburg, "West Jurist," Feb. '69; 33 Me. 367; 14 Pa. St. 478; 1 Marshall, 3; 21 Ala. 755; 28 id. 677; 20 Ga. 15; 36 Me. 176; Stark. Ev. vol. 2, part 2, 931. sumption of BECK, J.-The questions for our determination in this case relate to the correctness of the instructions given by 1. DEATH: pre- the court to the jury. The first instruction from absence. announces the rule that the death of an absent person cannot be presumed, except upon evidence of facts showing his exposure to danger, which probably resulted in death, before the expiration of seven years from the date of the last intelligence from him; and that evidence of long absence without communicating with his friends, of character and habits, making the abandonment of home and family improbable, and of want of all motive or cause for such abandonment which can be supposed to influence men to such acts, is not sufficient to raise a presumption of death. The instruction is not in accordance Tisdale v. Connecticut Mutual Life Ins. Co. The with the true rule of evidence, and is erroneous. error is evidently the result of an improper construction of the familiar rule of evidence, that, when a person has not been heard of for many years, the presumption of duration of life ceases at the end of seven years (2 Starkie's Ev. 361), and an attempt to apply it to the facts in this case. The rule by no means limits the presumption of death to an absence of the person whose existence in life is in question without tidings from him for the space of seven years; nor does the modification of the rule laid down in the cases cited by defendant's counsel, that such absence for a shorter period, if the person is shown to have been in peril, will raise a presumption of death, exclude evidence of other facts and circumstances which tend to establish the probability of his death. tion from cir combined with Any facts or circumstances relating to the character, habits, condition, affections, attachments, prosperity and 2. presump- objects in life, which usually control the concumstances duct of men, and are the motives of their absence. actions, are competent evidence from which may be inferred the death of one absent and unheard from, whatever has been the duration of such absence. A rule excluding such evidence would ignore the motives which prompt human actions, and forbid inquiry into them in order to explain the conduct of men. The true doctrine may be readily illustrated thus: An honored and upright citizen, who, through a long life, has enjoyed the fullest confidence of all who knew him, prosperous in business and successful in the accumulation of wealth; rich in the affection of wife and children, and attached to their society; contented in the enjoyment of his possessions, fond of the associations of his friends, and having that love of country which all good men possess, with no habits or affections contrary Tisdale v. Connecticut Mutual Life Ins. Co. to these traits of character-journeys from his home to a distant city and is never afterward heard of. Must seven years pass, or must it be shown that he was last seen or heard of in peril, before his death can be presumed? No greater wrong could be done to the character of the man than to account for his absence, even after the lapse of a few short months, upon the ground of a wanton abandonment of his family and friends. He could have lived a good and useful life to but little purpose, if those who knew him could even entertain such a suspicion. The reasons that the evidence above mentioned raises a presumption of death are obvious; absence from any other cause, being without motive and inconsistent with the very nature of the person, is improbable. It is suggested in argument that such absence may be on account of insanity. That may be possible, but as death under such circumstances is more probable than insanity in the absence of evidence thereof, the law raises the presumption of death. Evidence which would point toward insanity as the cause of such absence, would of course be proper for the consideration of the jury, from which its probability might be determined. The competency of evidence of the character above indicated, from which the fact of the death of an absent person may be found within the period of seven years, is well sustained by authority. 2 Greenl. Evid. § 278; Angell on Fire and Life Ins. § 351; Doe v. Flanagan, 1 Kelly, 543; White v. Mann, 26 Maine, 376; Smith v. Knowlton, 11 N. H. 197. 3. pre sumption from The second instruction, so far as it embodies the errors pointed out in the first one, is objectionable. It is also erroneous in the statement of the effect to be letters of ad-given to the letters of administration as eviministration. dence, and is objectionable on this point, both in expression and in substance. The letters of administration are prima facie evidence of the death VOL. XXVI. — 23 Singer v. Cavers. of the party upon whose estate they are issued. 1 Greenl. Ev. $$ 41, 550. But, it must be conceded that the presumption of death raised thereby is of the lowest class, weak and inconclusive, and capable of being rebutted by slight evidence. This results from the fact that administration is often, if not commonly, granted without formal proof of death, upon the application of friends or relatives of the decedent. The granting of letters of administration cannot, therefore, be considered an adjudication upon the fact of death which is conclusive upon that question. Evidence, therefore, which, under the rules of law, would establish the existence in life of the supposed decedent at the time of the granting of administration upon his estate, would overcome the presumption raised thereby. The instruction is erroneous, in that it determines the weight of evidence which is the peculiar province of the jury. A prima facie case having been made, the jury must determine, under proper directions of the court, what quantity of evidence will outweigh the presumption thus raised. The jury having been incorrectly instructed, the judg ment of the District Court is SINGER V. CAVERS. Reversed, 1. Demurrer: WHEN TOO GENERAL. A demurrer to a petition on the ground that it does not state facts sufficient to constitute a cause of action, is insufficient. 2. SUSTAINING OF GENERAL ONE. The sustaining of a general demurrer to the whole of a petition, one count of which is well stated, is erroneous. |