(dissenting).
This was a Wisconsin contract, and the law of that state governs the disposition of this case.
The law of Wisconsin is set forth in Delaney v. Metropolitan Life Insurance Co., 216 Wis. 265, 257 N.W. 140. For other Wisconsin cases, see below. 1
Four propositions of law there announced bear upon this appeal:
(a) A presumption of death arises after seven years of unexplained absence.
(b) No legal presumption exists as to date of death, which the seven years’ absence established.
“Unless the facts and circumstances shown in any particular case are such as warrant a reasonable inference that death took place at some particular time within the seven years, death is not presumed before the end of the period.” Dobelin v. Ladies of Maccabees of the World, 171 Wis. 54, 57, 174 N.W. 897, 898.
(c) The burden is upon the party asserting the fact — the plaintiff — to show death occurred before the date fixed for the payment of the premium.
“The party having the burden of proving death at any particular time must sustain that burden by evidence. In this case the evidence must be such as to warrant the inference that deceased died on the date of his disappearance.” Delaney v. Metropolitan Life Ins. Co., 216 Wis. 265, 269, 257 N. W. 140, 142.
(d) Ascertainment of the date of death presents a jury question where there is evidence from which inferences may be drawn that death occurred shortly after disappearance.
“In the instant case it is undisputed that White had been unheard of for more than seven years, and the material question is, At what particular time during the seven years he was unheard of did he die? This is a question of fact, to be determined by the trial court or a jury.” White v. Brotherhood, etc., 165 Wis. 418, 422, 162 N.W. 441, 442.
The Wisconsin holdings are in accord with many state supreme court decisions 2 *80All the cases cited held the date of death was for the jury. The precedent value of these decisions, however, is lessened because no two cases are actually factually similar.
A leading case in favor of submitting the question of the date of death to the jury is Tisdale v. Connecticut Mut. L. Ins. Co., 26 Iowa 170, 96 Am.Dec. 136. There, it was said:
“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 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. * * * 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.”
Each case has its separate factual background. The basis of the many decisions which have left the date of death to the jury, is the recognition that mental states, intentions, explanations of suicide, and disappearances, are factual in their nature. The facts bearing on mental states, intentions, suicidal causes, etc., and the inferences which flow from such facts, support juries.’ verdicts just as legitimately and soundly as physical evidence or the spoken word, the truthfulness of which is contested.
The last sentence of the letter (set forth in the majority opinion) to the wife, the mother of his children, might well have been accepted by the jury, over all other evidence, as indicative of a final disappearance from his home and family. It was written under such sad and solemn circumstances as to be prognostic and foreboding. From it the jury might have legitimately drawn an inference of contemplated self-destruction of life by the insured.
All other facts of a contrary nature may well have been eliminated by the jury, and must be entirely excluded by us, save where the testimony offered by appellee is uncon-tradicted. And in passing upon the verdict, as well as. upon the ruling of the court upon a motion for directed verdict, we must necessarily accept that view of the evidence, and the inferences to be drawn therefrom, most favorable to the plaintiff’s case.
It follows from what has been said that I think the District Court properly submitted the case to the jury.
Whiteley v. Equitable Life Assurance Society, 72 Wis. 170, 39 N.W. 369; White v. Brotherhood of Locomotive Firemen, 165 Wis. 418, 162 N.W. 441; Hansen v. Central Verein, etc., 198 Wis. 140, 223 N.W. 571, 64 A.L.R. 1284; Eg-ger v. Northwestern Mutual Life Ins. Co., 203 Wis. 329, 234 N.W. 328; Dobe-lin v. Ladies of Maccabees, 171 Wis. 54, 174 N.W. 897.
Fidelity Mut. Life Ass’n v. Mettler, 185 U.S. 308, 22 S.Ct. 662, 46 L.Ed. 922; California: Benjamin v. District Grand Lodge, 171 Cal. 260, 152 P. 731; Colorado: Kansas City L. Ins. Co. v. Marshall, 84 Colo. 71, 268 P. 529, 61 A.L.R. 1321; Kentucky: Kendrick v. Grand Lodge, 8 Ky.Law Rep. 149; Mutual L. Ins. Co. v. Louisville Trust Co., 207 Ky. 654, 269 S.W. 1014; Michigan: Griffin v. Northwestern Mutual Life Ins. Co., 250 Mich. 185, 229 N.W. 509; Minnesota: Goodier v. Mutual L. Ins. Co., 258 Minn. 1, 196 N.W. 662, 34 A.L.R. 1383; Missouri: Bonslett v. N. Y. Life Ins. Co., Mo.Sup., 190 S.W. 870; Johnson v. Sovereign Camp, 163 Mo.App. 728, 147 S.W. 510; Schell v. Metro. L. Ins. Co., Mo.App., 3 S.W.2d 269; Bradley v. Modern Woodmen, 146 Mo.App. 428, 124 S.W. 69; Ohio: Supreme Commandery v. Everding, 20 Ohio Cir.Ct.R. 689, 11 O.C.D. 419; Texas: Sovereign Camp v. Boden, 117 Tex. 229, 1 S.W.2d 256, 61 A.L.R. 682; Amer. Nat. Ins. Co. v. Hicks, Tex.Com.App., 35 S.W.2d 128, 75 A.L.R. 623; Supreme Lodge of the Pathfinder v. Johnson, Tex.Civ.App., 168 S. W. 1010; Washington: Butler v. Supreme Court I. O. F., 53 Wash. 118, 101 P. 481, 26 L.R.A.,N.S., 293.
See also, U. S. v. O’Brien, 4 Cir., 51 F.2d 37; English v. U. S., D.C., 25 F.2d 335; Kansas City L. Ins. Co. v. Marshall, 84 Colo. 71, 268 P. 529, 61 A.L.R. 1321; Gaffney v. Royal Neighbors, 31 Idaho 549, 174 P. 1014; Seeds v. Grand Lodge, 93 Iowa 175, 61 N.W. 411; Har*80rison v. Masonic Mut. Ben. Soc., 59 Kan. 29, 51 P. 893; Behlmer v. Grand Lodge, 109 Minn. 305, 123 N.W. 1071, 26 L.R.A.,N.S., 305; Eklund v. Supreme Council, 152 Minn. 20, 187 N.W. 826; Fanning v. Equitable Life Assur. Soc., 264 Pa. 333, 107 A. 715.
In Jones on Evidence, Sec. 291, page 481, it is stated:
“But by the weight of authority, the presumption is only that the person is dead at the expiration of seven years, not that the death occurred at the end of that time or at any other particular time within that period. This is left to be determined as a matter of fact, according to the circumstances which may tend to satisfy the mind that it was at an earlier or later day.” (citing many cases) See also, Wigmore, on Evidence, § 2531 b..