No decisions directly in point were cited, nor can I find any, but the situation is analogous to one in which a plaintiff seeks to recover accident benefits upon evidence that the insured has disappeared. The defendant has the burden of proof here just as the plaintiff has in the disappearance cases. In both cases the burden is to prove not only the fact, but also, within certain limits, the manner of death, and I do not see why the same rules should not apply to both.
In Continental Life Insurance Co. v. Searing, 3 Cir., 240 F. 653, 657, the plaintiff contended that the insured had died accidently by drowning, although there were no witnesses and his body was not found. The Court said: 'This presumption of life can be met and overcome by proof of circumstances of specific peril to which the person disappearing was subjected, and we think there was evidence in this case which, if believed, tended to show such peril.' In Occidental Life Ins. Co. v. Thomas, 9 Cir., 107 F.2d 876, 879, the Court said: 'It is not necessary that the proof go so far as to preclude all possible inferences except that of accidental drowning. * * * Thomas may be still alive, or if dead, it may be that he died from other than accidental causes; but the facts essential to a recovery need not be established to a moral certainty or beyond a reasonable doubt.'
If the present policy had been an accident policy and the issue accidental death, it could hardly be doubted that, under the rules stated, the evidence if offered by the plaintiff would be deemed sufficient to support a verdict. True, the plaintiff in the present case did not have to prove accident but needed only to prove death and consequently did not offer the evidence of peril, but the inferences which the evidence will support are the same whether offered by the plaintiff or by the defendant.
Now, I do not suggest that riding in an airplane always places a passenger in circumstances 'of specific peril' in the popular understanding of those words, but certainly it is as perilous as bathing in the ocean on a cool evening (as in the Searing case, there being no evidence in that case that the surf was high or the sea rough) or going fishing on a lake in the late afternoon as in the Thomas case.
If the evidence would support the finding that the insured's death was accidental, and I think there is no doubt that under the rule laid down by the decisions referred to it would, then it must also support the finding that the accident consisted in the plane's falling into the ocean. That, it seems to me is not only a reasonable inference, but the only reasonable one. As the Court said in the Thomas case, supra: 'This is a situation where * * * the same evidence not only supports the inference of death, but also points to the cause of it.' Various more or less fantastic explanations of disappearance of plane and passengers might be suggested but, with practically no land on the direct route to Trinidad, I do not see how there could be much doubt in the mind of any reasonable person that it came down in the sea. At any rate it is not necessary to preclude all other possibilities.
If the plane fell into the sea then, again, the reasonable, probable and almost necessary conclusion, from the nature of the accident, is that the insured's death resulted from riding in an airplane. Again, there are possible theories which might account for his death otherwise as, for example, gunfire from a German submarine, but they are remote. Certainly, if it be taken as established that, having been riding in an airplane which fell into the sea and was lost with all on board, the insured is dead, it seems to me that it is not only permissible but reasonable and logical to conclude that he met his death as a result of riding in the airplane.
I conclude as a matter of law that the plaintiff is not entitled to receive the face value of the policy but that she is entitled to recover the amount of the net reserve with interest.
The facts are so simple that separate findings are unnecessary. The statements of fact contained in the foregoing opinion may be taken as special findings. Conclusions of law are as above.
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