Caldwell v. Modern Woodmen of America

Citations

• 90 Kan. 175
• 133 P. 843
• 1913 Kan. LEXIS 186

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Insurance — Death Presumed after Seven Years’ Absence (89 Kan. 11) — Assured Appears Pending Rehearing of Appeal— New Trial Ordered. A judgment upon an insurance policy based upon the presumption of the death of the insured person after an unexplained absence of over seven years was affirmed. Afterwards, and while the action was pending upon a motion for a rehearing, evidence was filed in this court tending to prove that the insured person was still alive. A rehearing was granted upon the question whether the issue of death should be again tried in the district court, and upon that question, on leave given, to both parties, additional evidence was filed in this court tending further to prove that the insured is living. No evidence is presented to the contrary. It is held: (1) that upon the circumstances of this case the defendant is not precluded from asserting that the insured is still alive by its failure to discover and produce proof of that fact at the trial; (2) that this court has jurisdiction to allow a new trial of the single issue of death.</p> <p>2. - Jurisdiction of Supreme Court — Extraordinary Situation. While this court has no jurisdiction to determine the issue of death presented in the pleadings, it may, in the exercise of appellate jurisdiction, consider the new evidence in determining the question whether that issue shall be retried in the district court.</p> <p>3. - Same. In the extraordinary situation presented, in order that the truth may be ascertained and justice done, a new trial of the issue to determine whether the insured person was living when the action was commenced is allowed.</p>