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as a means of aiding the defense of cused if, before a breach of the confailure of consideration, and obviat- tract, its performance becomes imposing the objection to that defense that sible by reason of the death of such the failure of the consideration was person. In contracts of this kind it is not due to the fault of the plaintiff, an implied condition that death shall but to the inability of the defendant to dissolve the contract. The implicaperform the contract.

tion arises in spite of the unqualified On the subject of death as a defense character of the promisory words, beto an executory contract, it is said in cause, from the nature of the con6 R. C. L. p. 1009: “Generally, the tract, it is apparent that the parties death of a party does not terminate a contracted upon the basis of the concontract if it is not of a personal na- tinued existence of the particular perture.

As already intimated it son." On the following page it is is sufficient if the acts agreed to be stated specifically that a contract to done are of a personal nature. The marry is regarded as personal in its case comes under the general prin- nature, and is extinguished by the ciple that where the performance of a death of the promisor. This, however, contract depends upon the continued undoubtedly, is upon the assumption existence of any particular person, that there had been no breach of the and there is no warranty of such con- contract prior to the death. tinued existence, performance is ex

L. S. E.

MARY WARNER, Appt.,

V.
MODERN WOODMEN OF AMERICA, Respt.

Washington Supreme Court (Dept. 2)

April 4, 1923.

(124 Wash. 252, 214 Pac. 161.)

Insurance, $ 602 - limitations, § 96 — disappearance of insured – delay in

commencing action. A delay of four years after the expiration of the seven-year period from the disappearance of an insured, before presenting proofs of loss and commencing action on the policy, is unreasonable as a matter of law, and bars a right to recover on the policy.

(See note on this question beginning on page 91.]

APPEAL by plaintiff from a judgment of the Superior Court for Spokane County (Oswald, J.) in favor of defendant in an action brought to recover the amount alleged to be due on a life insurance policy. Affirmed.

The facts are stated in the opinion of the court. Messrs. Belden & Belden and Harry Div. 520, 48 N. Y. Supp. 36; Walker v. L. Cohn, for appellant:

Bowman, 27 Okla. 172, 30 L.R.A. (N.S.) Where the Statute of Limitations has 642, 111 Pac. 319, Ann. Cas. 1912B, 839; for its starting point the accrual of a Wilkinson v. John Hancock Mut. L. Ins. cause of action, the term “to accrue" Co. 27 R. I. 146, 61 Atl. 43, 8 Ann. Cas. means “to arrive,” “to commence,” “to 1063; Rice v. United States, 122 U. S. come into existence," "to become a 611, 30 L. ed. 793, 7 Sup. Ct. Rep. present enforceable demand.”

1397; Bennett v. Thorne, 36 Wash. 1 C. J. 732; Weise v. McDowell, 93 253, 68 L.R.A. 113, 78 Pac. 936. Iowa, 772, 61 N. W. 1094; Hays Land The action was commenced within & Invest. Co. v. Bassett, 85 Kan. 48, 116 a reasonable time. Pac. 475; Barnes v. Brooklyn, 22 App. Behlmer v. Grand Lodge, A. 0. U. W.

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109 Minn. 305, 26 L.R.A. (N.S.) 305, ston, Montana; the deceased and 123 N. W. 1071; 2 Thomp. Trials, 1531; appellant being then residents of Lund v. St. Paul, M. & M. R. Co. 31 that city. The allegations of appelWash. 286, 61 L.R.A. 506, 96 Am. St.

lant's complaint, and also the eviRep. 906, 71 Pac. 1032.

dence introduced upon the trial in Messrs. Truman Plantz, George G. Perrin, and Davis & Heil, for respond

her behalf, render it plain that her

claimed right of recovery as the ent:

Plaintiff having elected to base her beneficiary named in the certificate right of recovery upon the death of is not rested upon any direct or speSherman Warner, occurring May 20, cific proof of the death of her hus1906, it follows that the statutory band, but is rested upon the fact of period of limitations applies.

his unaccountable disappearance in Harrison v. Masonic Mut. Ben. Soc.

May, 1906, his continued absence, 59 Kan. 29, 51 Pac. 893. The burden is upon the one alleging whereabouts on the part of his fam

and the want of knowledge of his that the death occurred at any particu

ily and acquaintances for a period of lar time to prove such fact. Butler v. Supreme Ct. I. O. F. 26

seven years thereafter and at all L.R.A. (N.S.) 294, note.

times since then, and the legal preWhen no action is brought on sumption of his death arising therepolicy for ten years after the right from. In July, 1917, which it will of action arose, plaintiff is guilty of be noticed was over eleven years aftsuch laches as to prevent her recovery. er his disappearance, as claimed by Northwestern Mut. L. Ins. Co. v.

appellant, she presented to respondLowery, 14 Ky. L. Rep. 600, 20 S. W.

ent proof of the death of her hus607.

band by her affidavit, stating the Parker, J., delivered the opinion circumstances of his unaccountable of the court:

disappearance and continued abThis is an action upon a benefit sence, and claiming the amount of certificate of life insurance issued to the benefit certificate. Respondent the deceased husband of the plain- having refused to recognize or allow tiff, Mary Warner, the beneficiary her claim, she commenced this acnamed therein, by the defendant, tion in October, 1917, seeking recovModern Woodmen of America, a fra- ery on the certificate, alleging in her ternal beneficial society. The case complaint the death of her husband proceeded to trial in the superior and the time thereof, as follows: court for Spokane county, sitting “That a short time prior to the 1st with a jury. At the conclusion of day of May, 1906, the said Sherman the introduction of evidence on be- Warner underwent an operation in half of plaintiff, the trial court, in the city of Denver, Colorado, and on response to an appropriate motion May 1st wrote the plaintiff from made by counsel for the defendant, Denver of said operation, and stated withdrew the case from the consid- therein that the said operation was eration of the jury, decided as a only partially successful, and that matter of law that the evidence was another operation would be necesnot such as to sustain a recovery by sary as soon as he was physically the plaintiff, and accordingly ren- able to submit to one, and thereafter dered its judgment of dismissal, the said Sherman Warner wrote to rested upon the ground that the the plaintiff from Sheridan, Wyoplaintiff's right of recovery, if any ming, under date of May 20, 1906, she had, was barred by the lapse of since which said date nothing has time. From this disposition of the been heard from the said Sherman case the plaintiff has appealed to Warner by the plaintiff, his friends, this court.

relatives, or acquaintances, or those The certificate sued upon was who, if he were living, would have issued by respondent society on No- been most likely to hear from him, vember 4, 1898, by the duly consti- and plaintiff alleges the fact to be tuted officers of its camp at Living- that the said Sherman Warner is (124 Wash. 252, 214 Pac. 161.) dead, and died on or about the 20th present proof of his death and comday of May, 1906."

mence an action on the certificate, The evidence, we shall assume, as since she was of necessity unable to claimed by appellant, and the trial make proof of his death until the court concluded, in the light of our expiration of such seven-year peridecision in Butler v. Supreme Ct. od, being compelled to rely upon the I. 0. F. 53 Wash. 118, 26 L.R.A. legal presumption of his death aris(N.S.) 293, 101 Pac. 481, was such ing from his disappearance and the as to have warranted the jury in lack of further knowledge of him on finding, if the case had been submit- the part of his relatives and acted to it, that appellant's husband quaintances during that period of died during May or early in June, time. 1906. At that time he was in good Because of the fact that the cerstanding in the society, and his bene- tificate ceased to be effective as a fit certificate was in full force and policy of insurance on the life of apeffect, and so remained until March, pellant's husband in March, 1907, it 1907, if he was then living; but he was, of course, necessary, in support then ceased to be in good standing, of her right of recovery upon the and his benefit certificate ceased to certificate, that she prove his death be of further force and effect, if he to have ocourred prior to that time. was then living, because of his fail. This, for present purposes, we asure to pay, and the failure of

anyone sume she successfully did; that is, to pay for him, any further dues or she presented such proof upon the assessments accruing upon the cer- trial as would support a finding by tificate to the society. The certif- the jury that her husband died, as icate contains no provision limiting claimed by her, as early as June, the time within which proof of 1906, when the certificate was in full the death of the insured shall be force, as we have noticed. Now it made and presented to the society, seems plain that appellant's cause of nor any provision limiting the time action accrued at the time of her within which an action to recover husband's death, and that the sixupon the certificate shall be com- year Statute of Limitation then commenced following the death of the menced to run against her claim, insured, except that such action can and effectually barred her recovery only be commenced within one year at the expiration of that limitation following the presentation of such

period in June, 1912, except as the proof and rejection thereof by the time of her right to seek recovery board of directors of the society. on the policy was by some special

The trial court judge proceeded circumstance extended beyond that upon the theory that, since the cer- period. It may be conceded that the tificate was silent on the question of lack of knowledge of the death of the time within which proof of death appellant's husband up until March, should be made and action com- 1907, and the payment and acceptmenced seeking recovery, save as

ance of dues and assessments upon we have above noticed, our six-year the certificate up until that time, exStatute of Limitations relating to tended her time for seeking recovery actions upon written contracts is upon the policy to that extent. Our controlling of the time within which decision in Teed v. Brotherhood of the appellant must commence her ac- American Yeomen, 111 Wash. 367, tion upon the certificate, computed 190 Pac. 1005, relating to a one-year from the time of the accrual of her contract limitation, rather than a cause of action, to wit, the time of statutory limitation, seems to supthe death of her husband, with the port this view. This, however, does exception that she would be entitled not aid appellant, since more than to a reasonable time following the ten years expired following the last expiration of seven years after the payment of dues and assessments disappearance of her husband to upon the certificate, when it ceased to be effective, before the commence- to her and complete in every respect ment of this action.

in June, 1913, at the expiration of As we understand counsel, it is seven years following his disappearconceded that, while appellant's ance in June, 1906. At that time the cause of action, in a strict legal six-year Statute of Limitation, in so sense, accrued upon the death of her far as its running was unimpaired, husband in June, 1906, the running had run its course, which impairof the statute was suspended in her ment was in no event other than bebehalf because of the necessity of cause of the proof of his death being her relying upon the presumption of unavailable to her prior to the exher husband's death arising from piration of that seven-year period. his seven years' unaccountable ab- Assuming for present purposes that gence, and that she had a reasonable she had reasonable time thereafter time after the expiration of such to present proof of her husband's seven-year period, the six-year stat- death and commence this action, we utory limitation in so far as it was think reasonable minds can but arunimpaired having expired, to pre- rive at the conclusion that the apsent proof of her husband's death proximately four years' delay by her and commence this action. This in presenting to respondent proof of brings us to the real and controlling her husband's death and commencquestion of the case; that is, whether ing this action was an unreasonable or not the trial court erred in decid- delay on her part, and the trial court ing as a matter of law that she de- was right in so deciding as a matter layed an unreasonable time in pre- of law. Some contention is made senting proof of her husband's death that the trial court should not have and the commencement of this ac- so decided as a matter of law, in the tion after the expiration of the seven light of the evidence that appellant years following her husband's disap- had heard rumors as to the wherepearance in May or June, 1906. abouts of her husband near the time That period expired in May or June, of the expiration of the seven-year 1913. She did not present to re- period following his disappearance spondent proof of her husband's

and subsequent thereto, which indeath until July, 1917, more than duced her to believe that he might four years after there was available still be alive, and that for this reato her complete proof of her hus

son she was warranted in delaying band's death by the legal presump- presenting to respondent proof of tion arising at the end of the seven years following his disappearance; this action.

his death and the commencement of

These rumors all and she did not commence this action until October, 1917. The prin proved unfounded. The undisputed cipal argument advanced by counsel

fact remains that appellant's husfor appellant is that the court erred

band unaccountably disappeared in in deciding as a matter of law that Mayor June, 1906, and no word this was an unreasonable delay in

whatever was ever received by appresenting proof of her husband's pellant, his relatives or acquaintdeath and the commencement of this ances, during the seven years followaction, rather than submitting that ing his disappearance, nor have any question to the jury for decision. rumors come to appellant or his

We feel constrained friends or relatives, so far as this Insurancelimitations-dis. to hold that the de- record shows, which have proved reappearance of

cision of the supe- liable, of his whereabouts at any insured-delay in commencing rior court deciding time since his disappearance in May action.

that question as a or June, 1906. We think the trial matter of law was correct. Appel- court was right in deciding as a lant's proof of the death of her hus- matter of law that appellant's claim band was, in a legal sense, available against respondent was barred by

(124 Wash. 252, 214 Pac. 161.) the lapse of time at the time she pre- Main, Ch. J., and Holcomb and sented proof of her husband's death Tolman, JJ., concur. and commenced this action.

Fullerton, J., concurs in the reThe judgment is affirmed.

sult.

ANNOTATION.

Statutory or contractual limitation where presumption of death of the insured

from seven years' absence is relied upon.

As the title indicates, the annota- W. v. Piper (1920) Tex. Civ. App. tion is confined to the question of the —, 222 S. W. 649. running of the statutory or contrac- In Benjamin v. Independent Order tual limitation, and is not concerned of B’Nai B’Rith (Cal.) supra, where an with the question as to the effect of insured in a fraternal benefit society the failure to pay premiums or assess- disappeared and the action was not ments during the seven-year period brought within the statutory period necessary to raise the presumption of counting from the time of death as death, although the fact in that re- found at the trial, it was held that gard is indicated in connection with the action was not barred by the Statthe question of limitations. The an- ute of Limitations, as under the cirnotation is further confined to cases cumstances the beneficiary could not where the presumption of death from make proof of death as required by seven years' absence is essential to the the certificate of insurance until after proof of death, to the exclusion of the lapse of seven years from the death cases like Harvey v. Fidelity & C. Co. of insured, as the cause of action did (1912) 119 C. C. A. 221, 200 Fed. 925, not arise upon the death of the insured, writ of certiorari denied in (1913) 229 but when satisfactory evidence of his U. S. 614, 57 L. ed. 1352, 33 Sup. Ct. demise was presented by the legal Rep. 774, where the circumstances, un- presumption of death from seven aided by the presumption, were suf- years' unexplained absence. In the ficient to establish the fact and time instant case the court held that the of death as coincident with the disap- beneficiary could not recover unless pearance.

it was found by the jury that the inIn the following cases, where the sured died prior to the suspension insured persons disappeared under cir- of his certificate, in February, 1901. cumstances giving rise to a presump- (The latter point is beyond the scope tion of death after seven years' ab- of the annotation except as it bears sence, the courts held that actions to on the question of limitation.) recover on the life insurance policies While proof of disappearance and issued to such persons did not accrue unexplained absence for seven years till the expiration of seven years from or more raises a presumption of the date of their disappearance, when death, it raises no presumption as to the legal presumption of death arose: date or time after the disappearance Benjamin v. Independent Order of when such death occurred. So, in B'Nai B’Rith (1915) 171 Cal. 260, 152 Haines v. Modern Woodmen (1920) Pac. 731; Haines v. Modern Woodmen 189 Iowa, 651, 178 N. W. 1010, supra, (1920) 189 Iowa, 651, 178 N. W. 1010; the court held that where the assured Behlmer v. Grand Lodge, A. 0. U. W. disappeared October 16, 1909, the bene(1909) 109 Minn. 305, 26 L.R.A.(N.S.) ficiary continuing to pay the dues on 305, 123 N. W. 1071; New York L. Ins. the policy up to the time when, acting Co. v. Brame (1917) 112 Miss. 828, upon the legal presumption of death, L.R.A.1918B, 86, 73 So. 806; O'Hara she brought action after filing proofs v. Metropolitan L. Ins. Co. (1920) 73 of death on January 18, 1918, the Pa. Super. Ct. 434; Supreme Lodge, K. action was not barred by a by-law of P. v. Wilson (1918) – Tex. Civ. App. the insurer providing that no action -, 204 S. W. 891; Sovereign Camp, W. for the recovery of a death claim on

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