62 Mo. 121 | Mo. | 1876
delivered the opinion of tlie court.
This was an action by the plaintiff as administrator of the estate of Thomas H. Touhey, who, it was alleged, died by drowning on the 20th day of September, 1869, to recover from the defendant the sum of twenty-five hundred dollars and interest, on a policy of insurance issued by the defendant on the life of said Touhey, on the 12th day of July, 1869. The plaintiff averred full compliance with all the conditions
It was averred in the petition that the plaintiff was duly appointed by the probate court of the county of St. Louis, administrator of the estate of Thomas H. Touhey, deceased. This allegation was thus denied : “ Defendant for answer to the petition of plaintiff says, that it has no knowledge or information sufficient to form a belief as to whether the plaintiff was legally appointed administrator of the estate of Thomas H. Touhey.”
The answer admitted the insurance of Touhey’s life at the time, and for the amount stated, but denied the death of Touhey; denied that he fulfilled the conditions of his policy, and denied the notice and proof of death as alleged by plaintiff.
It.appeared from the testimony introduced by the plaintiff,' that about the middle of September, 1869, Thomas H. Touhey, the assured, took passage at Chicago for Detroit, on the steamer Badger State, a lalje propeller, plying between Chicago and Buffalo. 'He appeared to-be sick and despondent when he went on board, and he remained in his stateroom during the first two days of the voyage and took his meals there. He was spoken of by some of the employees of the boat who observed him, as “ the sick man,” and he wore a large overcoat. Sometime, during the night in which the steamer reached Detroit, Touhey disappeared and has not since been heard from. The watchman who was on duty the night Touhey disappeared, saw him last just before supper, and when the vessel was near the foot of lake Huron, and before it had entered the St. Clair river. The steward of the boat last saw him about the same time and talked with him in the wash room; he left there, he said, to go to the water closet, which was on the main deck. The engineer, during the same evening and before the boat entered the St. Clair river, while looking at the starboard aft gangway in the main deck, saw the insured standing aft of him, about twelve
The court gave the following instruction at the instance of the plaintiff: “If the jury believe from the evidence that proof of the death of the assured Thomas H. Touliey was furnished to defendant by plaintiff, and the jury believe from the evidence that said Thomas H. Touliey had died by drowning before said proof of death and the bringing of this suit, then they will assess the damages at the-sum of twenty five hundred dollars and may further find interest to this date at the rate of six per cent, per annum from the date of the expiration of the sixty days after proof of loss furnished ;” to the giving of which instruction the defendant at the time excepted.
6. “ The court instructs- the jury that the perils of navigation are general and not specific perils, and in order to find for the plaintiff in this case they must believe from the evi dence that Thomas H. Touhey whose life was insured by de fendant was a passenger on board the propeller Badger State on or about the evening of Sept. 20th, 1869; that said Touhey did not leave said boat either at the wood dock on the Canada shore of St. Clair river, or at Detroit, and that said Touhey on said date fell overboard from said boat and was thereby drowned.”
8. “The‘court instructs the jury that, if they believe from the evidence of the plaintiff that said evidence is quite as consistent with the view tlnit Thomas H. Touhey went ashore from the propeller either at the wood dock, on the Canada side of the St. Clair river, or at Detroit, as it is with the view that said Touhey accidentally fell overboard and was drowned, then the plaintiff cannot recover.”
The following instructions were asked by the defendant and refused by the court:
5. “The court instructs the jury that an absent person, of whom no tidings have been received, is presumed in law to live" for seven years from the time he was last known to be living, and that they are bound to presume that Thomas H. Touhey is still living, unless there are circumstances in evidence proving his death to the satisfaction of the jury.”
7. “The court instructs the jury, that the evidence of death in this case was circumstantial only, and to entitle the plaintiff to recover in this action he must introduce evidence tending to show to the satisfaction of the jury that Thomas H. Touhey was, at some particular time since he became insured by the defendant, in contact with some particular peril calculated to shorten or destroy life.”
To the refusal of the court to give the foregoing instructions numbered five and seven, the defendant at the time excepted. There was a verdict and judgment for the plaintiff,
Objections were made and exceptions saved to the admission of some testimony introduced by the plaintiff; but the action of the court in giving and refusing instructions was the only error complained of which was brought to the attention of the court below in the motion for a new trial, and is consequently the only matter which can properly be reviewed in this court.
As will be seen by reference to that portion of the pleadings copied above, the defendant in its answer admits the appointment of the plaintiff as administrator of Touhey by the probate court of St. Louis county, but denies the legality of the appointment. The defendant also proved by the plaintiff that he was administrator of Touhey’s estate, and had made three annual settlements. The admission contained in the pleadings and the testimony introduced by the defendant sufficiently establish the fact, we think, that letters of administration had been granted by the probate court of St. Louis county to the plaintiff. The grant of letters being established, we must presume that they conformed to the requirements of the statute, and recited both the death of Touhey and his residence in St. Louis county. This is sufficient to throw the burden of proof on the defendant to show that the letters to the plaintiff were illegally issued.
Letters of administration, according to all' American authorities we have examined, are prima facie evidence of the death of the person on whose estate they are issued. (Newman vs. Jenkins, 10 Pick., 515 ; Tisdale vs. Com. Mut. Life Ins. Co., 26 Ia., 170; Jaffers vs. Radcliff, 10 N. H., 242; Cunningham vs. Smith’s Adm’rx, 70 Penn. St., 450; 1 Grreenl. Ev., § 550 ; McKim vs. Riddle, 2 Dall., 100 ; French vs. Frazier’s Adm’r, 7 J. J. Marsh, 432; Bliss Life Ins., 2 ed., 327; Munro vs. Merchant, 26 Barb., 397.) "We are aware that in some cases in England a different rule is maintained. T h e prima facie case made by the letters of administration is, however, generally conceded by the authorities to be of
No testimony was offered by the defendant to rebut the prima facie case made for the plaintiff, and the only evidence of the circumstances attending the. disappearance of the insured was offered by the plaintiff. It remains, then, to be seen whether these circumstances are sufficient to rebut the presumption of death made by the grant of administration, and to bring into operation that other presumption of law, that a person who has disappeared and has not been heard from shall be presumed to continue to live for the period of seven years since 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. In determining this question it is immaterial whether the testimony showing the circumstances attending the disappearance of the insured, are produced in evidence by the plaintiff or defendant.
The rule contended for by the defendant is, that where the evidence of death is circumstantial only, the jury are not warranted in inferring death, unless the evidence shows that the party whose death is sought to be established, was, when last heard from, in contact with some particular peril calculated to shorten or destroy life. The rule as thus stated, while it has the support of some distinguished names, and is undoubtedly correct as far as it goes, is much more restricted than that laid down in the case of Tisdale vs. The Com. Mut. Life Ins. Co. (26 Ia., 170) and which has received the approval of this court in the case of Hancock, Adm’r of Morris,
The ordinary perils of navigation are undoubtedly general and not special perils, and there is no ground for supposing that the sickness of the insured of itself terminated his life, as it is evident from the testimony that he did not die upon the boat, and nothing appears from which it may be inferred that he left the boat and went on shore. The testimony points, we think, to the single conclusion that the insured disappeared from the vessel while it was under way in Lake Huron, and was drowned, either by accident or design. The fact that his coat and vest were found hanging upon a hook in his room-would seem to indicate that after he had retired, or had at least- partially prepared to retire, he had gone forth from his room and had either fallen or thrown himself into the lake. The instruction numbered six, given at the instance of-the defendant, in effect, told the jury they could not find for the plaintiff, unless they found the drowning to have been accidental. The testimony preponderates in favor of the conclusion that the insured was, on a night in September cool enough to require an overcoat, subjected, in a weak condition of body, and a dejected state of mind, to the perils of a struggle with the waters of Lake Huron, and in the utter absence of all testimony showing how he got into the lake, the presumption is that it was the result of accident. (Mallory vs. Traveler’s Ins. Co., 47 N. Y., 52.) The testimony in this case is amply sufficient to raise a presumption of death ; and it is manifest that the prima facie case made by the letters of administration is corroborated and strengthened, rather than overthrown, by the testimony as to the circumstances attending the disappearance of the insured.
The instruction numbered five, asked by the defendant, ignored thejprima facie case made by the grant of adminis
Instructions numbered six and eight, given for the defendant, presents its ease very fairly to the jury on the testimony adduced, and we will not disturb the finding.
The instruction given for tbe plaintiff is abstractly objectionable in failing to confine the inquiry of tbe jury as to death to the period for which the insured had paid the premium, but there is no pretense that he died after that time, and this error is not material under the circumstances of this case.
The judgment will be affirmed; all the judges concur, ex- - cept Judge Tories, who is absent.