Elliott v. Prudential Insurance Co. of America

Citations

• 76 Pa. Super. 534
• 1921 Pa. Super. LEXIS 182

Syllabus

<p>Insurance — Death of insured — Presumption of death — Liability on policy.</p> <p>The presumption of death, arising from an unaccounted absence of a person for seven years, must be taken to run exclusively from the termination of the prescribed period.</p> <p>In an action to recover the amount due on an insurance policy, a verdict for the plaintiff will be sustained, where evidence is produced that the insured had been absent and unheard of for a period over seven years, and the presumption of death stands as competent and satisfactory proof, until it is successfully rebutted by competent evidence to the contrary.</p> <p>Mes adjudicata — Identical issue — Question not decided in former suit.</p> <p>In an action on an insurance policy, the fact that, in a suit on the same policy brought three years previously, judgment had been entered in favor of the defendant non obstante veredicto, does not establish that the case was res adjudicata, when the issue in the former suit was whether or not the death of the insured had been properly proven. In the second proceeding the death of the insured was established by presumption through the lapse of time, and the failure to recover in the former suit, because of inability to prove the death of the insured, would not he a bar to recovery in the second action.</p> <p>In applying the principle of res adjudicata, the inquiry is not always, perhaps, as to the identity of the cause of action, but as to tho identity of the matter in issue; and the matter in issue is not what comes collaterally or incidentally in controversy under the evidence, but what is essentially and directly in issue in the cause.</p>