[225 N. Y.] Statement of case. [Jan., him. The proof should remove the reasonable probability of his being alive at the time. 2. Whether or not the presumption of death arises from the evidence is almost always, of necessity, a question for the jury. Whenever, however, the evidence is without contradiction and incapable, whether without or with contradiction, of creating, in reasonable minds, conflicting inferences, the question is one of law for the trial justice to decide. 3. Where in an action brought by the beneficiary of a policy of life insurance, who is the mother of the insured, the plaintiff offered no direct evidence of his death, relying upon the presumption of death arising from his absence, unheard of, during more than seven years, and the unconflicting evidence produced by plaintiff shows that the alleged decedent had the definite and fixed intention of not returning to the home of his parents but had formed the purpose of seeking elsewhere the opportunity and location satisfactory to him and conducive to the acquisition of money, and none of the communications to his parents and other facts justify the inference that death is the probable reason why nothing has been heard from, or of, him for seven years, the evidence does not uphold the presumption of death and a judgment for plaintiff entered upon the verdict of a jury cannot be sustained. Butler v. Mutual Life Ins. Co., 173 App. Div. 1001, reversed. (Argued November 19, 1918; decided January 7, 1919.) APPEAL from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 1, 1916, affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion. Murray Downs and Frederick L. Allen for appellant. Plaintiff must prove death and cannot recover merely upon a presumption of death. (Buffalo L., T. & S. D. Co. v. Knights Templar, 126 N. Y. 450; Knights Templar v. Crayton, 209 Ill. 550; Charter Oak Life Ins. Co. v. Rodel, 95 U. S. 232; N. Y. L. Ins. Co. v. U. L. Ins. Co., 88 N. Y. 428; Cunnius v. Reading School Sistrict, 198 U. S. 458; Scott v. Mc Neal, 154 U. S. 34; Cerf v. Diener, 1919.] Opinion, per COLLIN, J. [225 N. Y.] 210 N. Y. 156; O'Gara v. Eisenlohr, 38 N. Y. 296; Donovan v. Twist, 105 App. Div. 171; McCartee v. Campbell, 1 Barb. Ch. 455; Straub v. A. O. U. W., 2 App. Div. 138; 158 N. Y. 729.) Hiram Wooden and Patrick Cauley for respondent. The trial court properly submitted to the jury, as a question of fact, the matter of the death of the insured. (Matter of Bd. of Education, 173 N. Y. 321; Higgins v. Eggleton, 155 N. Y. 466; Reilly v. Troy Brick Company, 184 N. Y. 399; Koehler v. New York Steam Co., 183 N. Y. 1; Mannheimer v. Ind. Order, 83 Misc. Rep. 457; Connor v. N. Y. L. Ins. Co., 179 App. Div. 596; Murphy v. Met. L. Ins. Co., 92 Misc. Rep. 479; Policemen's Benev. Assn. v. Ryce, 213 Ill. 9; Matter of Benjamin, 155 App. Div. 233; White v. Emigrant Ind. Savings Bank, 146 App. Div. 591; Matter of Wagener, 143 App. Div. 286; Lawson on Presumptive Evidence, 250; Barson v. Mulligan, 191 N. Y. 306; Matter of Bd. of Education of N. Y., 173 N. Y. 321; Mutual Ben. Life Ins. Co. v. Martin, 108 Ky. 11; Springmeyer v. S. C. W. W., 163 Mo. App. 338.) Plaintiff has furnished the defendant with satisfactory proofs of death. (Mannheimer v. Ind. Order, 83 Misc. Rep. 457; Cummer Lumber Co. v. Ass. Man. Mut. Fire Ins. Corp., 67 App. Div. 151; 173 N. Y. 633; Dobson v. Hartford Fire Ins. Co., 86 App. Div. 115; 179 N. Y. 551.) COLLIN, J. The beneficiary in a policy of life insurance brought the action to recover the amount of the insurance. The policy, issued by the defendant, dated May 12, 1905, insured Charles E. Butler. The plaintiff offered no direct evidence of his death, relying on the presumption of death arising from his absence, unheard of, during more than seven years. At the trial the defendant duly excepted to the denial of its request at the close [225 N. Y.] Opinion, per COLLIN, J. [Jan., of the evidence that the complaint be dismissed. The jury, under the submission of the question whether or not the absence of the insured was caused by his death, rendered a verdict in favor of the plaintiff. The decision of the Appellate Division was not unanimous. We are, therefore, to determine whether or not the evidence upheld the presumption. The evidence justified the jury in deeming established the facts: In May, 1905, the insured resided with his parents and two brothers in the city of Rochester, New York. In March, 1906, having learned the machinist's trade, he went to St. Louis, Missouri, and became an employee, as a traveling installer, of a telephone company. He was twenty-two years of age, in sound health, of good appearance and habits. He had received an ordinary education and possessed ordinary intelligence. He remained in the employ of the telephone company about one year, during which, in the performance of his duties, he traveled quite extensively. In April, 1907, he became an employee of the Western Electric Company at Coffeyville, Kansas. When such employment ceased is not disclosed. At the time he left Rochester his relations with the members of his family were very friendly. Through the year next succeeding March, 1906, he very frequently wrote letters to his mother. He wrote to no other member of the family. Thereafter his letters were infrequent and after October, 1907, no letter or communication was received by his mother from him, and no tidings whatsoever of him were received by his mother or anybody else to her knowledge. A letter from him to his mother dated St. Louis, Missouri, March 16, 1906, stated that he inclosed for her a money order for ten dollars of his wages. A like letter under the date of March 31, 1906, stated: "Received your letter yesterday and as pay day is here I waited till I could send a money order." A letter from him, dated" Sterling, 1919.] Opinion, per COLLIN, J. [225 N. Y.] Kansas, Oct. 16, 1906," stated: "I thank you most greatly for your offer to me but it is true I haven't saved a cent. I earn enough to keep myself honestly and independent. I have left Dodge for a couple of weeks as I couldn't get my brakeman's job till after November 1st, so I thought I would try at other division points till I got a position or go back to Dodge; at any rate I shall make a visit east in the spring. I want to visit the mining towns in Colorado, if possible. Then I am going to settle down, if things are as good in Rochester, as when I left. It shall be there; if not, why money is what I want and it will be where there is money as I can't make much. * * Address me at Newton, Kansas, Gen. Del'y." In June, 1907, his mother received a postal card from him with the post mark on it "June 4 1907" and the inscription, "Plaza, Fort Scott, Kan.," which stated: "Going through to Kansas City." No communication came from him between the receipt of it and the receipt of a letter dated September 22, 1907. His parents and brothers had lost all trace of his whereabouts and occupation. In July, 1907, his mother wrote a letter to the Western Electric Company and a letter also to the employer telephone company, asking information with regard to him. Each company replied that it was unable to give her any information. In September, 1907, his mother received a letter from him, dated Hutchinson, Kansas, September twenty-second, 1907, which stated: "No doubt you will be surprised to hear from me as no doubt you think me in jail but I am not nor haven't been, but I have come to the conclusion that I am a failure in this old world and till I could take a brace I wasn't going to lie to you and make you think me a howling success. I am trying to get a job as brakeman on the Santa Fe R. R., as it pays pretty good money, averages about $100 per month. I need recommendations to get it. Must have one from some one [225 N. Y.] Opinion, per COLLIN, J. [Jan., who has known me for five years back. I have been straight that long now or you would have heard different by this time, so I want you to get Pa to get S. G. McGrail to say he has known me that long and he has and say I am straight. It doesn't put him under obligations to R. R. Co. and if he will do that I will promise you $10 a month for 6 mos. if I get the job. Write me a letter, don't scold, I may turn out O K after all, am certainly going to try. If I don't get this, I am going farther south for winter and north in spring. Tell me about S. P. Bernie, Elmer and Pa. I love you all, even if I have not showed it. Lovingly yours, Charlie. I leave Hutchinson to-night for Dodge City, Kansas, so address at Dodge City, Kansas, Gen'l. Del'y." Neither his mother nor father gave this letter answer or attention. The request was not complied with and no attempt was made to renew or continue the correspondence with him. The only further communication between them were two postal cards received from him in October, 1907, the one post marked Raton, New Mexico, which stated: "I am going farther west; " the other post marked Reno, Nevada, which stated: "I am on my way." In 1910 the plaintiff made ineffectual inquiry concerning him of the police marshal of Raton, New Mexico. In 1912 she received letters, in response to inquiries by her, from the authorities of thirteen or more state penal institutions, stating in effect that he was not and had not been a member of either of those institutions. 1914 and 1915 ineffectual inquiry was made by her of the police department of Sioux City, Iowa, of the post office authority of Oklahoma, Oklahoma, and of the Union Pacific Railroad Company at Chicago, Illinois. The plaintiff also advertised in the New York Journal and Rochester and Chicago papers. When the insured left Rochester there was a deposit in his name of about one hundred dollars which remained on deposit and had been In |