89 Kan. 11 | Kan. | 1913
The opinion of the court was delivered by
The defendant appeals from a j udgment rendered upon a beneficiary certificate issued in the year 1890 to W. H. Caldwell, a member of the order, payable to his wife (the plaintiff) at his death. It was admitted that all dues and assessments had been paid to the date of the trial. The petition alleged that Caldwell left his home in Hutchinson on the 7th of April, 1902, and had not been heard from since September of that year, when a letter was received by his wife informing her of his serious illness at Stockton, Cal. Other statements of the petition set out the inquiries made for the missing man and the failure to
The evidence on the part of the plaintiff tended to prove that the member was a well-known citizen of Hutchinson. He had been engaged at different times as foreman of a salt plant, clerk in a hardware store, farmer, thresherman, and grocer. Just previous to his leaving home he had been carrying on a grocery business,- which was turned over to his creditors. He left a wife and three children at his home in Hutchinson, 22, 17 and 15 years of age, respectively. His relations with his family were affectionate. He declared his intention to go to California to seek a new location, where his family should join him. His son accompanied him to the train. Letters written by him were received by his family at frequent intervals, averaging one in each week, from several places in California. One of these letters was from Sheridan, and was answered by letter directed to him there. In writing from some of the other places he requested that answers should not be sent until he wrote again. He wrote from Stockton, Cal., in September, 1902, saying that he was sick in a pesthouse there with smallpox, but was getting better. Later, in October, he wrote again that he had suffered a relapse and was worse. The family wrote several letters to him afterward, but, hearing nothing further, on inquiry about him by letter to the postmaster at Stockton, on November 2, they learned that these letters remained un
Depositions were taken by the defendant of the city ^health officer, the sextons of cemeteries and clerks of -hospitals in Stockton, and evidence was adduced tending to show that Mr. Caldwell’s death had not been reported to the proper officer, and that his name was not found upon the records of the county hospital where smallpox patients were cared for nor upon the records of interments in the principal' cemeteries of the city. The defendant also offered evidence tending to prove that Mr. Caldwell left debts unpaid at Hutchinson.
It is contended that the inquiries made by the plaintiff were insufficient to overcome the presumption of continuing life by the presumption of death arising from seven years’ unexplained absence. In order that the latter presumption may prevail there must 'be a lack of information concerning the absentee on the part ■of those likely to hear from him after diligent inquiry. The inquiry should extend to all places and persons where or from whom tidings would likely be received in the ordinary course of events; and in general the inquiry should exhaust all patent sources of information, •and others which the circumstances suggest. (Modern Woodmen v. Gerdom, 72 Kan. 391, 82 Pac. 1100; Renard v. Bennett, 76 Kan. 848, 93 Pac. 261.) The rule, however, does not require absolutely conclusive proof. It is sufficient if the evidence warrants a finding that such inquiries have been made. In the second review of the Gerdom case it was said:
*15 “Probably all efforts that would ordinarily be suggested, however painstaking or exhaustive, would still leave some source of information unexplored. The parents should only be held to the exercise of reasonable diligence in endeavoring to obtain tidings of their son. They were not required to prove conclusively ■that he was dead, but were bound to produce such evi-
The defendant alleged that in his application for membership Caldwell stated that his father was then living and was 82 years of age, and that his mother was also living and was 71 years of age; that the certificate was issued in reliance upon the statements made in the application, and contained a provision that if any of the statements were untrue the certificate should be null and void. It was further alleged that the father was not 82 years of age and was only 53 years old, and that the mother was not living, having died many years before. Other misrepresentations concerning brothers
To sustain the issue of misrepresentation the defendant offered the application in evidence, but it was rejected. This is alleged to be fatal error. While this ruling was included in the grounds presented for a new trial, a copy of the excluded evidence was not produced by affidavit or otherwise on the hearing of the motion, as required by section 307 of the civil code. The ruling, therefore, is not open to review. (Clark v. Morris, 88 Kan. 752, 129 Pac. 1195.)
Error is predicated upon the rejection of other evidence. The defendant produced the record of two chattel mortgages and other evidence tending to show that Caldwell left debts unpaid to the amount of about $500 when he left, and it was in evidence that he turned over his stock to his creditors. A writing was also produced, signed by Caldwell, as follows:
“This trouble is all my own. My wife is innocent of everything so don’t blame her for I did it all myself.”
The mortgagee was asked if he found out whether Caldwell owned the property (a threshing outfit) described in the mortgage; also whether he had attempted to get possession of the property. Objections were sustained. It is suggested that this was an effort to prove that Caldwell did not own the property or some of the property mortgaged, thus tending to prove a motive for leaving home. It was doubtless proper to prove indebtedness at that time, with other circumstances of his leaving, and this was done. It would seem that the jury were sufficiently informed of his financial condition, and the failure to require answers to these questions was immaterial. (Civ. Code, last clause of § 307, and § 581.) However, the defendant did not produce the excluded evidence on the motion
The by-law purporting to change the presumption of death in cases of disappearance is also relied upon as a defense. This by-law was attached to the answer,, and was proven on the trial. While it was not produced in evidence on the motion for new trial, it was a part of the pleadings. In this respect it differs from the application above referred to. The member was 32 years, of age at the date of the certificate, and the limit of his expectation of life had not been reached when this, action was commenced. Nearly six years of the seven-year period involved in the presumption had expired when the by-law was adopted. Referring to this by-law the court instructed the jury in substance that actual death of the member might be proved, like any other fact, by direct or circumstantial evidence; that considering the circumstances of his disappearance, absence, age, health, character, domestic relations, social rank and financial condition and all other facts and circumstances of the case, if they found that he died before the passage of the by-law, it would not prevent a recovery.
Assuming that the by-law was valid and retroactive in its operation, as claimed by the defendant, two questions arise concerning it, viz., whether the foregoing instruction is a correct statement of the law, and whether the evidence sustains a finding that Caldwell died before September 1, 1908, when the by-law became effective. In an opinion delivered by Justice Brewer, in Ryan v. Tudor, 31 Kan. 366, 2 Pac. 797, it was said that a jury may infer death within less than seven years where besides unexplained absence there-are other matters to show death. The opinion also refers to Tisdale v. Insurance Co., 26 Iowa, 170, quoting therefrom:
“ ‘The death of an absent person may be presumed in less than seven years from the date of the last intelli*19 gence from him, from facts and circumstances other than those showing his exposure to danger which probably resulted in his death. . . . Evidence of character, habits, domestic relations, and the like, making the abandonment of home and family improbable, and showing a want of all those motives which can be supposed to influence men to such acts, may be sufficient to raise the presumption of death, or from which the death of one absent and unheard from, may be inferred, without regard to the duration of such absence.’ ” (Ryan v. Tudor, 31 Kan. 366, 370, 2 Pac. 797.)
In Lancaster, Adm’r, v. Washington Life Ins. Co. of N. Y., 62 Mo. 121, it was stated as a general presumption that a person who has disappeared and has not been heard from shall be presumed to continue to live for seven years after he was last known to be alive—
“Unless within that period it shall be shown, that when last heard from he was in contact with some specific peril likely to produce death, or that he disappeared under circumstances inconsistent with a continuation of life, when considered with reference to those influences and motives which ordinarily control and direct the conduct of rational beings; in either of which cases the jury are at liberty to infer that death occurred at such time within seven years as from the testimony may seem most probable.” (p. 128.)
It was said in the Gerdom case (72 Kan. 391, 82 Pac. 1100), that death may be proved by circumstantial evidence, and that absence for a considerable period of time is not indispensable in order to generate a satisfying conviction of the fact. Situations were referred to where the fact of death might be forced upon the mind very soon after the disappearance. Circumstances of health, disposition, moral character, domestic relations, social rank and financial condition were referred to as affording in some cases sufficient proof of death, (p. 395.) In Greenleaf on Evidence, 16th ed., section 41, after stating that the presumption of continuity of life ceases after an absence for seven
“The presumption in such cases is, that the person is dead; but not that he died at the end of the seven years, nor at any other particular time. The time of the death is to be inferred by the jury from the circumstances.”
“Death may be inferred from evidence of facts inconsistent with the theory of the existence of life. Thus it has been held that where an absentee when last heard of had just embarked on a vessel which has not since been seen or heard of and is long overdue, his death may be presumed, although the full period of seven years may not have elapsed since it sailed. So, if he was in a ‘desperate state of health’ . . . or if he was exposed to some specific peril likely to cause death, when last heard of, it may be presumed that he is dead although seven years may not yet have elapsed since that time.” (1 Elliott on Evidence, § 112.)
2 Wharton on Evidence, section 1277, states the same principle.
It is concluded that the instruction is in accordance with the opinions in the Tudor and Gerdom cases and the weight of authority upon this question.
But it is argued that the facts of this case do not warrant the application of the principle.. It is also said that the negative evidence of the defendant, showing the absence of Caldwell’s name from hospital and cemetery records and the register of deaths, rebuts any inference that he died at Stockton. The absence of his name from these records, while competent evidence, is not conclusive of the fact. It is by no means certain that other pesthouses were not provided in or near the city. The cross-examination shows that there was a large sanatorium there, although not within the city limits, concerning which no records were produced. The cemetery records were only those of the three principal cemeteries. Considering the nature and progress of the disease, the patient having suffered a relapse, that temporary provisions in the way of pest-
Some minor rulings are complained of, but no error is found affecting substantial rights.
The judgment is affirmed.