Darrell

pro tern.—The appeal is taken by the defendant from the judgment upon the verdict of a jury, in an action upon a life insurance policy, in which the plaintiff is named as the beneficiary. The vital question involved in the action is whether or not Loys Darrell, husband of the plaintiff, and the person whose life was insured, is dead or alive.

At the trial the plaintiff produced evidence showing that Loys Darrell and the plaintiff intermarried in the city of San Francisco in February, 1908, and that they continued to reside together in congenial relationship as husband and wife until the fourteenth day of August, 1909, upon which date the husband departed from his home in San Francisco, with the avowed purpose of going to the city of Sacramento, to be absent a day or two, whither he was going to make arrangements to exhibit some horses at a fair. At the time of his departure he had about one thousand dollars in cash in his possession. The testimony further shows that from the time of this departure his wife has never heard from him or of his whereabouts or whether or not he was living or dead, although a fair degree of diligence was exercised by her and some of the friends of the…