Mr. Chief Justice Fuller
delivered the opinion of the court.
Inasmuch as the validity of the statute of Texas authorizing the recovery of damages and attorneys' fees for failure by life and health insurance compani.es to pay losses was seasonably drawn in question by defendant below as being in contravention of the Constitution of th'e United States, we think the case comes within Loeb v. Columbia Township Trustees, 179 U. S. 472; American Sugar Refining Company v. New Orleans, 181 U. S. 277, and that the writ of error may be maintained. The motion to dismiss is, therefore, overruled.
Four propositions are-relied on as grounds of reversal, which we will consider in the reverse order in which they are stated in the brief for plaintiff in.error.
I. " The court erred in not charging the jury to find a verdict in favor of the defendant because of the failure to offer .sufficient evidence from which an inference of Hunter's death could be drawn."
In our opinion the evidence was sufficient to justify the inference that Hunter was drowned in the Pecos River, on December 4, 1896, and the court below properly refused to peremptorily instruct the jury to find for defendant.
The question of Hunter's death was a question of fact to be determined on all relevant facts and circumstances disclosed by the evidence. The evidence tended to show that he was last seen alive on December 3d, when he parted from his sister and started for Mentone, with the intention of returning in a few days. He did not arrive, nor return, but disappeared. He camped on the banks of the Pecos River; and the abandoned wagon, harnesses and gun, the starved horse, the ashes of the fire, the used cooking utensils, the fragments of food, the bed with its imprint of the sleeper, bore testimony that he cooked, ate, and slept there, and that he went no farther. The footsteps to the river's brink, going but not returning, the water buckets, the mark of slipping, the fractured root, the flowing stream, indicated what might have happened, and the fact that he was not seen nor heard from thereafter, although his relations with his family were intimate and cordial, and he had always kept up a correspondence with them, so that one or more of them would have been likely to hear from him unless his life had abruptly terminated or its habitual course been suddenly changed, rendered the inference of fatal accident reasonable.
The record does not set forth the general charge of the court in full, but, among others, this instruction was given: " While death may be presumed from the absence, for seven years, of one not heard from, where news from him, if living, would probably have been had, yet this period of seven years during which the presumption of continued life runs, and at the end of which it is presumed that life ceases, may be shortened by proof of such facts and circumstances connected with the disappearance of the person whose life is the subject of inquiry, apd circumstances connected with his habits and customs of life, as, submitted to the test of reason and experience, would show to your satisfaction by a preponderance of the evidence that the person was dead."
Defendant excepted to the giving of this instruction, and requested the court to instruct that " the circumstances proven must exclude, to a reasonable and moral certainty, the fact that such person is still living, and each fact in the chain of facts from which the death of the party is to be inferred must be proved by competent evidence and by the same weight and force of evidence as if each one were the main fact in issue, and all the facts proven must be consistent with each other and consistent with the main facts in issue, that is, the death of the party."
The court did not err in giving the one and refusing the other instruction. This was not a criminal case, and it was not necessary that th'e death' should be proven beyond a reasonable doubt. The party on whose side the weight of evidence preponderated was entitled to the verdict. P.roof to a " moral certainty " is an equivalent phrase with " beyond a reasonable doubt." Gray, C. J., Commonwealth v. Costley, 118 Mass. 1. In civil cases it is sufficient if the evidence on the whole agrees with and supports the hypothesis that it is adduced to prove, but in criminal cases it must exclude every other hypothesis but that of the guilt of the party. It has been held in some cases that when a criminal act is alleged the rule of reasonable doubt is applicable in establishing that act, but this is not such a case. 1 Greenleaf, Ev. (loth ed.) § 13a, note.
The court also instructed the jury as follows: " If from the evidence in this case you should come to the conclusion that Hunter has been continuously absent since December 3, 1896, without being heard from by his relatives and friends, it should have düe weight with you in arriving at your verdict." "Absence alone cannot establish the death of Hunter, for the law presumes an individual shown to be alive and in health at the time of his disappearance continues to live. While the death of Hunter is not to be presumed from absence alone, yet it is a circumstance which should be taken into consideration with all the other evidence in the case, and the conclusion of life or death arrived at from all the facts and circumstances, including his continued absence."
To this defendant excepted, and it is now argued that there was error because the court did not call the attention of the jury to defendant's contention that Hunter's continued absence might be attributed to the desire to obtain the insurance money. But it nowhere appears that defendant requested the court to modify the instruction in that particular, and as given it was correct.
The jury were not left to infer death from the mere fact of disappearance, but were specifically told that that was not in it-, self sufficient, and that .all the facts and circumstances must be considered.
Defendant asked the court to give this instruction : " If you believe from the evidence that William A. Hunter, Jr., has been seen or heard from by any one at any time since his disappearance, you will find for the defendant." This the court refused, and gave the following instruction : " The evidence of witnesses is also before you tending to show that William A. Hunter has been seen on two occasions and at two places since the date of his alleged disappearance on December 4, 18.96. You should carefully consider this evidence in relation to his .having been seen since the date of his alleged disappearance, and if you believe from- the evidence that he was seen by the witnesses who have testified to this, then, of course, it would be your duty to find for the defendant."
There was some evidence that Hunter had been seen, but none that he had been otherwise heard from. The request of defendant was rightly rejected, and the instruction given was sufficient. The criticism that the jury may have supposed that they Avere instructed that they must be satisfied that he had been seen by both witnesses, or on two occasions, is Avithout merit. It Avas impossible to have misunderstood what the learned judge.of the Circuit Court intended. If, as matter of fact, Hunter was seen alive,, whether once or tAvice, then, of course he did not die as contended by plaintiff.
It is further argued that the court erred in not instructing the jury as requested by defendant, that££ unless the jury believe from the evidence that William A. Hunter, Jr.,'when last' seen was in a position of peril, such as that it is more probable that he then and there lost his life than that he extricated himself from such perilous position alive, you must find for the defendant." Such, an instruction was uncalled for and calculated to mislead. There was no evidence that Hunter was in a position of peril when last seen. The evidence did, indeed, tend to show that he probably fell into the river, and so came in contact with a specific peril, and there was evidence regarding the depth, the rapidity and the quicksands of the river; but the instruction was objectionable in that it assumed that he.was seen in a perilous position of such a character as to afford the basis for speculation as to the probabilities of his extrication.
In Davie v. Briggs, 97 U. S. 628, 634, Mr. Justice Harlan said : " If it appears in evidence that the absent person, within the seven years, encountered some specific peril, or within that period came within the range of some impending or immediate danger, which might reasonably be expected to destroy life, the court or jury may infer that life ceased before the expiration of the seven years."
But it was not thereby ruled that the inference of death might not arise from disappearance under circumstances inconsistent with a continuation of life, even though exposure to some particular peril was not shown, and the evidence indicated that Hunter came within the range of immediate danger.
II. " The court erred in not charging, as requested, that if Hunter at the time of making application for insurance was not a farmer and real estate agent, there could be no recovery."
This relates to the refusal to instruct that " the jury must believe from the evidence that W. A. Hunter, Jr., at the time of making application for insurance to defendant, on which policies of insurance were issued and are herein involved, was at the time he made such application both a farmer and real estate agent, and unless you so believe, you will find for the defendant."
The entire charge of the court is not in the record, and there is nothing to show that the subject of Hunter's answer as to his occupation was not covered by it. Again, Hunter did not say that he was " a farmer and real estate agent," but that hi's occupation when he made the application was " real estate and farming," and the evidence of the truthfulness of that statement was so plenary, and the evidence from which to infer the contrary was so slight, that we think the refusal was justified on that ground.
Treating the statement of occupation as a warranty, the evidence-that Hunter was behind in his payments on the land in Loving County, and that forfeitures were entered in February, 1897, and that he may haye been engaged with a photographer for two or three months, even in the summer of 1896, did not' so impugn the substantial truth and good faith of his answer as to demand an instruction so worded.
III. " The court erred in admitting the testimony of a repute in the family of Hunter, concerning his death, and the manner thereof."
Hunter had parted with his sister and started for Mentone, December 3, with the intention of returning within a week or ten days. " After he had been gone ten days and did not come back and then two weeks and did not come back," his sister sent a man to make inquiry, who reported that Hunter had not' been to Mentone. A few days later she. sent again, and received a similar reply. The searching, party went out, found the abandoned camp, and reported,, and Mrs. Mettler then went herself. She described the condition of things at the camp and the brink of the river. This was December 29, and December 30, the day after she returned, she wrote her father in Ohio about it and that her brother was dead, drowned in the Pecos River, and she testified that her father, brothers and sisters, all believed that this was so, because of what she had written; while they testified that this was the belief of the family, based on the information she furnished. If this testimony should not have been admitted it is difficult to see that it could have been so prejudicial as to be fatal to the verdict, for it amounted to nothing more than the assertion' of Mrs. Mettler's belief and the acceptance by the family of that belief as their, own. In other words, it. cannot be supposed that the-jury regarded the evidence as tending to establish the fact of death when it purported only to state Mrs. Mettler's belief and the family's concurrence.
Moreover, in the aspect of showing the entertainment of such belief in good faith the evidence was admissible, if it had been offered at the proper time. Hunter had suddenly disappeared. Search was made, but was not prosecuted after the discovery of the deserted camp. The father was sharply interrogated as to failure to offer reward, to seine the river, to make " effort to find him, or his body." And so was the brother Charles. The theory of the insurance company was that the disappearance was voluntary, and that the conduct of Mrs. Mettler and the family was consistent with the belief that he was yet alive, and was indicative of a combination to defraud the company. This inference the family vtere entitled to repel by testifying to their conviction of his death. As to the fact of death, it was mere matter of opinion, but as to .their belief it was matter of fact showing innocence of fraud. Reasonable inquiry is frequently a prerequisite to the inference of death from disappearance, as well as other effort, but no inquiry or effort was made here after discovery of the camp, because the belief' of death and lapse of time rendered it useless. Whether that belief was well founded was for the jury, but that there was such belief was a relevant fact. New York Life Insurance Company v. Hillmon, 145 U. S. 285, 296; Wallace v. United States, 162 U. S. 477.
But we do not think the evidence was competent to establish the fact of death, under the circumstances of the case. To illustrate: In Scott v. Ratliffe, 5 Pet. 81, it was held that the testimony of a witness that " she was told that Mr. Madison was dead," was admissible; and in Secrist v. Green, 3 Wall. 744, 751, it was said that " it is competent to prove death and heirship by reputation." But these and similar rulings and expressions in other cases must be taken in connection with the particular facts and circumstances. In this case no question of pedigree; of birth, marriage, or death as bearing on legitimacy, descent, or relationship; of ancient rights; of past events prior to controversy, was involved; nor was there any pretence that this was evidence of tradition, or historical fact, or general reputation in the community participated in by the family. If evidence of death it would be evidence of the particular fact on which recovery was sought, and inadmissible as such. .The ruling was incorrect that: " It is a question for the jury to say whether or not family belief tends to prove his death," although that was qualified .by the learned judge charging the jury: " Reputation in his (insured's) family on the part of his father,sisters, and brothers of his death is proper evidence for your consideration, but not the opinion of any one." But, the entire record considered, we are of opinion that it cannot be presumed that the evidence aifected- the verdict injuriously to defendant, if at all, and, on the contrary, that it-affirmatively appears that if it could have had any influence whatever, it was solely from the point of view, which rendered it admissible.
IV. " The statute of Texas, which directs that life and health insurance companies, who shall default in payment of their policies, shall pay twelve per cent damages, together with reasonable attorney's fees, is in violation of the Constitution of the United States."
The statute referred to is article 3071 of the Revised Statutes of Texas of 1895, which reads as follows: " In all cases where a loss occurs and the life or health insurance company liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of the loss, twelve per cent damages on the amount of such loss, together with all reasonable attorney's fees for the prosecution and collection of such loss."
Article 3072 provided that if any life or health insurance company failed to pay off and satisfy any execution issued on final judgment against it within thirty days of demand of payment, the commissioner of insurance should declare the company's certificate of authority to do business null and void.
These articles were sections of chapter three of Title LVIII, " Insurance," and had been brought forward from the Revised Statutes of 1879, arts. 2953, 2954, chapter three, Title Bill, " Insurance." And the same provisions as to foreign life insurance companies and those incorporated outside of the State of Texas were contained in the first general insurance statute of Texas, which was passed on May 2, 1874. 2 Paschal's Dig. art. 7116 o.
Under this title no insurance company was permitted to do business in Texas without first obtaining a permit from the commissioner of.insurance, and compliance with the law was required before permission could be granted, while by the terms of article S|060 the commissioner was required to revoke the certificate of authority to do business in the State in case any company failed for thirty days to pay any execution issued against it on any valid judgment.
The provisions of chapter three embodied many conditions on which business-was permitted to be done. By article 3061 it was made unlawful for any person to act within the State as agent or otherwise for any insurance company for soliciting business unless the company had procured authority to do it from the commissioner. Article 3062 provided that any life or health insurance company desiring to do business in the State should furnish a sworn statement to the commissioner as prescribed, which by article 3063 was to be accompanied' by a copy of its charter or the law creating it. Article 306é required the company to designate an agent or attorney in fact on whom service might be had in case of suit, and article 3065 declared that no life or health insurance company incorporated in Texas or any other State should transact business in Texas with less capital than $100,000 actually invested. Article 3066 required insurance companies of other States to make such deposit in Texas as the laws of- their home State required of Texas companies doing business there, and article 3067 provided that all foreign companies should deposit $100,000 with the state treasurer before doing business in Texas; which deposit, by article 3068, was to be applied to the payment of judgments in favor of policyholders ; but article 3069 provided that it should be sufficient if the deposit required by section 3066 was made in any other State. Article 3070 provided that suits might be brought in any county where loss occurred or where the policyholder resided.
By article 3073 it was made unlawful for any life or' health insurance company to take any kind of risks or issue any policies of insurance. except those of life or health, and the business of life and health insurance in the State was forbidden to be " in anywise conducted or transacted by any company, which in this or any other State or country, is- engaged or concerned in the business of marine, fire, inland or other insurance."
Articles 3074, 3075, 3076, 3077, 3078, 3079, 3080, 3083, 3084 related to marine, fire or inland insurance companies.
Articles 3081, 3082, 3086, 3087, 3089 applied to insurance companies generally.
Article 3092 read: " The provisions of this chapter shall in nowise apply to mutual benefit organizations doing business in this State through lodges or councils, such as the order of chosen friends, knights of honor, or kindred organizations." Article 3096 read: "Nothing-in this title shall be construed to affect or in any way appty to mutual relief associations organized and chartered under the general incorporation laws of Texas, or which are organized under the laws of any other State, which have no capital stock, and whose relief funds are created and sustained bjr assessment made upon the members of said associations in accordance with their several by-laws and regulations ; " but an annual statement under oath to the department of insurance was required, and the article concluded: " And should any such benevolent organization refuse or neglect to make an annual report as above required, it shall be deemed an insurance company conducted for profit to its officers and amenable to the laws governing such companies."
Article 3092 was taken from an act of April 3,1889, entitled " An act to provide for the admission from other States of companies or associations carrying on the business of life or casualty insurance on the assessment or natural premium plan," and certain conditions were affixed to their right to do business in the State, which should not apply to mutual benefit organizations doing business through lodges or councils. Laws, 1889, p. 98.
Article 3096 was taken from an act of March 28, 1885, which amended chapter three, Title LIII of. the Revised Statutes of 1879, by adding an article thereto couched in similar terms. Laws, 1885, p. 62.
In the revision of 1895 these two laws were assigned to their appropriate place under the title of insurance. Such were the conditions which for many years had been imposed on life in surance companies doing business in Texas when the policy sued on in this case was issued. But it is now contended that article 3071 is in conflict with the Constitution of the United States, in that it denies the equal protection of the laws, because the same conditions are not imposed on fire, marine and inland insurance companies; and on mutual benefit and relief organizations doing business through lodges and mutual relief benevolent associations, more particularly the latter.
In other words, the contention is that the classification is so, arbitrary, so destitute 'of reasonable basis, as to be obnoxious to constitutional objection.
In Union Central Life Insurance Company v. Chowning, 86 Texas, 654, the Supreme Court of Texas held that the statute in providing for the recovery of damages and attorney's fees was not in violation of the Constitution of Texag or of the United States, and was a valid law. This decision was rendered in May, 1894, but section 2953 of the Bevised Statutes of 1879 was the same as section 3071 of the Bevised Statutes of 1895,. and the acts of March 28, 1885, and April 3, 1889, were in force, which were subsequently brought forward as sections 3092 and 3096. The Supreme Court held that as all corporations embraced in the classes named were affected alike by the provision, it did not deny the equal protection of the laws; and the court said that the twelve per cént was given as damages for a failure to comply with the contract by payment, and the attorney's fees were allowed as compensation for the costs of collecting the debt.' The court was further of opinion that even if the twelve per cent was a penalty for failure to pay when due, there was no provision of the constitution of Texas which forbade such legislation, and that it was'for the legislature to determine when the public was so interested in the enforcement of contracts as to justify that enforcement by penalties.
In Fidelity &c. Company v. Allibone, 39 S. W. Rep. 632, this ruling' was repeated by the Court of Civil Appeals of Texas, and affirmed by the Supreme Court in Fidelity &c. Company v. Allibone, 90 Tex. 660. Both these courts held that the constitutional question involved was distinguishable from that ruled by this court in Railway Company v. Ellis, 165 U. S. 150.
In New York Life Insurance Company v. Orlopp, 61 S. W. Rep. 336, the same conclusion was reiterated, on the ground that the state legislature had the right to provide the terms on which foreign corporations of that class might do business in the State, and that being a valid exercise of such power and right, the statute formed a part of the contract of every life and health insurance company issued and made in Texas, since the date of its enactment. The Circuit Court of Appeals for the Fifth Circuit in Merchants' Life Association v. Yoakum, 98 Fed. Rep. 251, held the section to be valid on full discussion.
It is apparent from the various sections of the title relating to insurance, to which we have before referred, that this particular liability amounted to one of the conditions on which life and health insurance companies were permitted to do business in Texas, and the power of the State in the matter of the imposition of conditions on its own and foreign corporations, has been repeatedly recognized by this court. If, however, notwithstanding the acceptance of these conditions, the constitutionality of the particular condition were nevertheless open to question, we must decline*to sustain the objection. The reasoning in Railroad Company v. Matthews, 174 U. S. 96, applies rather than that in Railway Company v. Ellis. The ground for placing life and health insurance companies in a different class-from fire, marine and inland insurance companies is obvious, and we think that putting them in a different class from mutual benefit and relief associations doing business through lodges, and benevolent associations of the character mentioned in the Texas statutes, is not an arbitrary classification, but rests on sufficient reason. The legislature evidently intended to distinguish between life and health insurance companies engaged in business for profit, (and we are not called on to refine as to the distribution of such profits,) and lodges and associations of a mutual benefit or benevolent character, having in mind also the necessity of the prompt payment of the insurance money in very many cases in order to provide the means of living of .which the beneficiaries had been deprived- by the death of the insured.
Orient Insurance Company v. Daggs, 172 U. S. 557; Waters- Pierce Oil Company v. Texas, 177 U. S. 28; New York Life Insurance Company v. Cravens, 178 U. S. 384, are in point and are decisive.
In Insurance Company v. Warren, 181 U. S. 73, a section of the Revised Statutes of Ohio provided in effect that no answer to any interrogatory made by the applicant to the policy should bar the right to recovery or be used in evidence on' a trial unless it was clearly proved that such answer was wilfully false and was fraudulently made, that it was material, and induced the company to issue'the policy, and that but for such answer the policy would not have been used; and, moreover, that the agent of the company had no knowledge of the falsity or fraud of such answer; and this provision was only applicable to life insurance companies. The constitutionality of that act was upheld by the Supreme Court of Ohio, and this court affirmed its judgment, and in the opinion the language used in Waters-Pierce Oil Company v. Texas was quoted: " A corporation is the creature of the law, and none of its powers are original. They are precisely what the incorporating act has made them, and can only be exerted in the manner which that act authorizes. In other words, the State prescribes the purposes of a corporation and the means of executing those'purposes. The purposes and means are within the State's control. This is true as to domestic corporations. It has even a broader meaning to foreign corporations." And we added : " It was for the legislature of Ohio to define the public policy of that State in respect of life insurance, and to impose such conditions on the transaction of business by life insurance companies within the State as was deemed best. We do not perceive any arbitrary classification or unlawful discrimination in this legislation, but, at all events, we cannot say that the Federal Constitution has been violated in the exercise in this regard by the State of its undoubted power over corporations."
Our conclusion is that the record shows no reversible error, and the judgment is, therefore,
Affirmed.
Me. Justice Beewee concurred in the judgment.