#### Page, Appellant, vs. Modern Woodmen of America, Respondent.

*January 11*

February *1, 1916.*

*Death: Presumption from absence: Life insurance: Benefit societies: Waiver of proofs of death.*

1. Proof of diligent search and inquiry is not required to establish the presumption of death of a person who has been absent from his home or place of residence for seven years without being heard from.

2. In an action upon a benefit certificate, proof that the insured (plaintiff’s husband) left his home in March, 1905, that neither the plaintiff nor any other person had had any tidings or information concerning him since the summer of 1905, that he had not been heard from for eight years prior to the trial, and that his whereabouts were wholly unknown, established the legal presumption that he was dead.

*2603. The refusal of a benefit society, after being notified of the presumed death of a member by reason of his not having been heard from for more than seven years, to furnish to the beneficiary blanks for proof of death, constituted a waiver of its requirement that proof of death should be made on blanks to be* furnished by it before an action could be .maintained on the benefit certificate.

Appeal from a judgment of tbe circuit court for Polk county: ObREN T. Williams, Judge.

*Reversed.*

Tbis is an action by tbe plaintiff to recover on a benefit certificate for $2,000 issued by tbe defendant upon tbe life of Arthur E. Page, tbe husband of tbe plaintiff, and payable upon bis death.

Tbe defendant is a corporation organised and doing business under tbe laws of tbe state of Illinois. Tbe plaintiff’s husband, Arthur E. Page, became a member and was insured in tbe defendant order in tbe state of Iowa on tbe 5th day of January, 1901. Sometime after tbe month of June, 1903, tbe membership was transferred to tbe local camp at Frederick, Wisconsin.

Tbe evidence discloses that tbe plaintiff and Arthur E. Page were married in tbe year 1880. They lived at Morse, Iowa, for about three years after their marriage, during which time they resided on a rented farm. In tbe fall of tbe third year Mr. Page went to Stratton, Nebraska, to take up a homestead and tbe plaintiff joined him the following April. Mr. Page remained there eight years, six of which tbe plaintiff was with him. During tbe time they resided upon tbe homestead Mr. Page spent six weeks in Colorado with a surveying outfit, two months iñ tbe eastern part of Nebraska, and then went to tbe state of Washington. On tbis Western trip be was away a little less than, a year, going to Tacoma and San Francisco. During all of tbis time be bad worked bis timber claim and homestead enough to comply with tbe law. After bis return from tbe West tbe family lived in Stratton for about three months and then returned to Morse, *261Iowa, where Mr. Page rented different farms for a period of eight or nine years. At the expiration of this period Mr. Page went to southern California, but failing to find any suitable occupation he returned home and he and his family moved to Frederick, Wisconsin. This was in the year 1903. Mr. Page purchased eighty acres of land at Frederick, and while living there was engaged in cutting timber from this land and making cord-wood. About January 12, 1905, he had 200 cords of wood for sale. He went to St. Paul, Minnesota, to sell the same, and arranged with one Coburn of Frederick to load and ship the wood to him as he sold it. After selling the greater part of this wood in St. Paul Mr. Page left there, and early in March ceased to write to his wife or to any one else at Frederick. He never returned to Frederick. The evidence tends to show that he was friendly with the plaintiff, that he was attached to his children, and that he manifested respect and esteem toward them. The plaintiff has not heard from him directly since the 2d day of March, 1905. Mr. Page had some financial obligations and some payments were due about the time of his disappearance. Plaintiff made inquiries of' relatives and friends as to his whereabouts when the time came to pay dues and assessments on the benefit certificate, but they were fruitless. She also advertised in the Woodman paper asking for information concerning him and received no reply. Plaintiff paid his dues and assessments as a member of the defendant company up to November, 1912. About eighteen months after Mr. Page’s disappearance plaintiff received a letter from a brother of Mr. Page residing at St. Louis, Missouri, stating that Arthur E. Page had been at his house in St. Louis in the spring or summer of 1905, that he left again, and that he stated at the time that he was going to Galveston, Texas. No further inquiries were made. His son Arthur left home in the latter part of the year that the father disappeared and has not been heard from since.

*262Tbe court submitted tbe case to a jury, wbo returned a general verdict for tbe defendant.

Tbe circuit court entered judgment on tbe verdict dismissing plaintiffs complaint with costs. Erom sucb judgment tbis appeal is taken.

. Eor tbe appellant tbe cause was submitted on tbe brief of *Morris B.*Yager, attorney, and *Holland &*Lovett, of counsel.

Eor tbe respondent there was a brief by *Truman Plants*and Wolfe, *Wolfe &*Reid, and oral argument by *W. F. Wolfe.*

SibbbcKER, J.

Tbe plaintiff contends that tbe circuit court erred in submitting to tbe jury tbe inquiry wbetber or not tbe insured, Arthur E. Page, was dead at tbe time of tbe trial. In ruling upon plaintiff’s motion for a directed verdict in her favor tbe court declared that in bis opinion tbe evidence, in tbe light of tbe decision in tbe *Miller Case (Miller v. Sovereign Camp W. O. W.*140 Wis. 505, 122 N. W. 1126), would justify a direction of a verdict in her favor, but that be deemed it appropriate to take a verdict to lay tbe foundation for a modification by tbis court of tbe rule declared in tbe decisions of tbis court as regards tbe necessity of making diligent search and inquiry to establish tbe presumptive death of a person wbo has been absent from bis borne and place of residence for seven years without being beard from. Tbe earlier authorities of tbis court on tbis question and tbe different rules which obtain in other jurisdictions on tbis subject were re-examined on tbe appeal to tbis court of tbe *Miller*Case, and it was determined not to modify tbe rule on tbis subject as established by tbe decisions of tbis court. No considerations have been suggested that have led us to conclude that tbe rule declared in tbe *Miller Case*should be modified.

An examination of tbe evidence in tbe instant case satisfies us that it permits only of tbe inference that plaintiff’s husband left bis borne and place of residence in tbe early part of March, 1905, and that neither tbe plaintiff nor any *263other person bas bad any tidings or information concerning him or of his whereabouts since the summer of 1905. The evidence clearly establishes the fact that Arthur E. Rage had not been heard from for a period of eight years immediately preceding the time of the trial of this case and that his whereabouts are wholly unknown. Under this state of the evidence the legal presumption that he is dead is established. This entitled the plaintiff to a direction of the verdict in her favor on this issue, and it was error of the trial court to refuse to direct the jury to render a verdict accordingly. *Cowan v.*Lindsay, 30 Wis. 586; *Whiteley v. Equitable L. Assur. Soc.*72 Wis. 170, 39 N. W. 369; *Miller v. Sovereign Camp W. O. W.*140 Wis. 505, 122 N. W. 1126.

,, Upon the facts shown the court correctly held that defendant’s refusal, through its officers, to furnish plaintiff blanks for proof of death upon her request and notice of Rage’s presumed death by reason of his not having been heard from for over seven years,- constituted a waiver of the defendant’s requirement that proof of death shall be made on blanks to be furnished by defendant before action can be brought to recover on the benefit certificate. The evidence shows that a proper request for such blanks was made and was refused. It appears that the company’s officers denied liability on the certificate under plaintiff’s claim that it had matured by force of the presumption that Rage was dead, in the light of all the facts and circumstances showing his disappearance and the absence of any intelligence or tidings that he was alive. Upon this state of the record the plaintiff is entitled to recover the amount due on the certificate.

*By the Gourt.*— The judgment appealed from is reversed, and the cause is remanded to the circuit court with direction to set aside the verdict and award the plaintiff judgment for the recovery of the amount due on the benefit certificate.

Kerwin, J., took no part.