158 Mo. App. 368 | Mo. Ct. App. | 1911
This action was originally instituted before a justice of the peace, by filing a statement and the policy involved. After averring the incorporation of defendant, the statement sets out that in consideration of the payment of the premium mentioned in the schedule in the policy, defendant contracted and agreed to pay the full or maximum amount of $162, and executed and delivered the policy filed, which is dated February 24, 1896. After averring that all premiums due upon the policy had been duly paid
Defendant appealed from an adverse judgment by the justice to the- circuit court. In the latter, the cause was tried by the court, a jury being waived.
The “proof of loss,” which had been submitted by plaintiff to defendant, was offered as notice to the company of the claim. It consisted of an affidavit setting out the facts substantially as made by plaintiff in her statement filed before the justice and on which the case was tried in the circuit court, defendant making no written plea. The only matter in the affidavit which was not in the statement is, that the occupation of the husband was that of a hod carrier and that plaintiff had not seen or heard from him since October 12, 1900.
The policy introduced in evidence is in the form usual to industrial companies, and provides that upon receipt of proofs of the death of the insured Dominic Carter, made in the manner and to the extent and upon the blanks required and upon surrender of the policy, etc., that defendant would pay the amount stipulated in the schedule, to the executor or administrator, husband or wife or any relative by blood or lawful beneficiary of the insured, and that the production of the receipt signed by either of them shall be conclusive evidence that all claims under the policy have been satisfied. The maximum amount named is $162, one-
A witness produced on part of plaintiff testified that she was acquainted with plaintiff and her husband Dominic Carter, living in the adjoining house to them; that the last time she had seen Dominic Carter was on the 12th of October, 1900, on which day he told the witness “he was going west; he intended to leave and never come back. . . . He said, ‘ out west, in California.’ He told me he’d never come back.” This witness had not seen him and had not heard from or of him since the 12th of October, 1900.
Plaintiff herself testified that the last time she had seen her husband, he expressed his intention of leaving at that time; that was on the 12th day of October, 1900, in the city of St. Louis. Plaintiff testified, referring to what her husband had said, “He told me he was going west and that he never did intend to come to St. Louis again;” that she had never heard from him from that time on; had received no letters from him; had made various inquiries in St. Louis as to his whereabouts but had not found him. She testified that she had heard from others that he was in California. This last answer was properly stricken out, on motion, as hearsay. She gave the names of several parties of whom she had made her inquiry.
Another witness produced by plaintiff testified that acting for plaintiff, he had made inquiries in St. Louis, in an effort to locate Dominic Carter, had inquired of the men with whom he had worked and who were in the same line of employment and belonged to
At the conclusion of the testimony the court, giving several declarations of law, found for plaintiff in the amount demanded.
We are compelled .to hold that there is no evidence whatever in this case on which we can sustain the finding of the learned trial judge. The action, while very defectively set out in the statement, undoubtedly attempts to state a case as one resting solely on section 6340 of our present statutes, which provides: “If any person who shall have resided in this State go from and do not return to this State for seven successive years, he shall be presumed to be dead in any case wherein his death shall come in question, unless proof be made that he was alive within that time. ’ ’ It must be said of the evidence in this case that it furnishes no proof whatever even tending to show that Dominic Carter was alive within the seven years. But the presumption of death, which is the one on which the statute operates, only arises when these facts are present: first, residence of the person in this state; second, departure of that person from this state; third, the continued absence of that person from this state for seven successive years, no proof being made that he was alive within that time. In the ease at bar, all that we have is the statement of the witnesses that Dominic Carter said when leaving home that he was going west and did not intend to return home. At common law that would be an explained absence, absence for adequate cause. “West” is a very indefinite word in this country and in common usage. It does not necessarily or inevitably raise the presump
We are referred to the decision of the Kansas City Court of Appeals in Duff v. Duff, 156 Mo. App. 247, 137 S. W. 909, as contrary to what we here hold. The facts there developed were not such as in the case at bar. The law there announced is exactly as here announced by us.
The judgment of the circuit court is reversed and the cause remanded.