Martin v. Modern Woodmen of America

158 Mo. App. 468 | Mo. Ct. App. | 1911

CAULFIELD, J.

(after stating the facts).— I. Defendant first assigns as error the action of the trial court in “overruling defendant’s objection to any evidence concerning disappearance under the allegation in the pleadings of ‘‘ death at a certain time. ’ ’ This assignment of error is not well taken. The disappearance was one of the facts going to establish the presumption that Wilt died. It was a merely evidential fact and permissible to be shown under the allegation of the ultimate fact of Wilt’s death. Defendant appears to concede this, but lays stress on the fact that the allegation is that Wilt died at a certain time and assumes that the exact time of the death thereby became the issuable fact, and contends that the evidence did not tend to prove it. Defendant’s assumption is unfounded. The time of Wilt’s death was not made issuable merely by pleading it. It was unnecessary to allege it in order to state plaintiff’s cause of action, and striking it out would leave a good statement. It concerned only the special defense that the suit was not commenced 'within the period prescribed by the contract and was matter coming more properly from the defendant. It may be treated as surplusage.

II. The defendant contends that the evidence offered does not meet the requirements Of the law and states the rule as follows: “The rule is that where there is an unexplained absence for a period of seven years without tidings to those who would likely have heard from such person, if living, and there does not appear to have been any probable motive for such absence, and search for him has been unavailing, the presumption of continued life ceases. ” It is sufficient response to this contention that the proof makes plaintiff’s case measure up to every requirement of the rule as stated by defendant’s counsel.

III. Defendant’s counsel solemnly asserts that “No search was made in this case.” "Without deeming it necessary to decide whether proof of reasonable search was required, we are satisfied that sufficient diligence was exercised to discover Wilt’s whereabouts or probable fate, to satisfy the law. Indeed, the statement that no search was made is an astonishing one in the face of the evidence. It is difficult to conceive of a widow in humble circumstances making a more diligent search, even if we ignore the assistance in that respect she received from the officers and members of the defendant order.

IV. Proof of waiver of the twelve months limitation was permissible without the waiver having been specially pleaded. Such proof was permissible under the allegation of full performance of precedent conditions on the part of the assured contained in the petition. Such is the rule in suits on insurance policies. [Burgess v. Insurance Co., 114 Mo. App. 169, 190, 89 S. W. 568.]

Y. We are also of tlie opinion that there was evidence tending to show a waiver of the limitation sufficient to support a finding to that effect. The defendant, by its general attorney, knowing that plaintiff’s time for bringing suit was passing, insisted upon more and more information and postponed final decision from time to time up to and beyond tbe expiration of the year and then placed its refusal upon the ground that it was not satisfied that Wilt was dead. Its letters would indicate to a reasonable mind a desire that plaintiff wait and postpone bringing suit until it might complete its investigations, and an intention to pay if such investigation proved satisfactory regardless of whether such result occurred after the year had expired. Such conduct was inconsistent with an intention to plead the- delay so brought about in bar of the action and is sufficient to justify the finding of a waiver. [Okey v. State Ins. Co., 29 Mo. App. 105.] Although the elements of estoppel in pais are present in the case, the letters of the defendant by its general attorney suggest an intention on the part of the defendant to relinquish its right to have suit brought within a year and were sufficient to support a finding that the defendant waived the limitation. We assume, of-course, that the general attorney was acting in good faith and not with a view fraudulently to mislead this widow into postponing her action until it was barred by lapse of time.

In this opinion we have assumed, without feeling the necessity of deciding, that under the facts and circumstances of this case the contract is to be regarded as an Illinois contract and enforceable as such in the courts of this state.

VI. Equally untenable is the contention that the verdict was excessive because it allowed interest from March 14, 1907. So far as the pleadings and proof disclose, the entire contract was in writing and promised to pay a certain sum, one thousand dollars, upon the happening of a contingency, the death of Wilt, to a certain person, this plaintiff. If there were conditions which would have delayed or diminished plaintiff’s recovery, the burden of pleading and proving them devolved upon the defendant and in the absence of such pleading and proof we must assume their nonexistence and assume plaintiff’s absolute right to have the one thousand dollars at Wilt’s death as promised. [Frame v. Sovereign Camp Woodmen of the World, 67 Mo. App. 127.] When the contingency occurred, the obligation was binding and absolute, and the sum presently due. [Brown v. Railway Passenger Assurance Co., 45 Mo. 221.] Under these circumstances by virtue of our statute allowing interest on written contracts, the plaintiff was properly allowed interest after it became due and payable, i. e. at Wilt’s death [Sec. 7179, Revised Statutes 1909; 4 Cooíey’s Briefs on Insurance, p. 3864; Knights Templars Indem. Co. v. Crayton, 209 Ill. 550; Brown v. Assurance Co., supra; Hellier v. Franklin, 1 Starkle’s Reports, 291], which death is presumed to have occurred by March 14, 1907, at least; that being after the seven years had expired. [Lawson on Presumptive Evidence, p. 251.]

Finding no prejudicial error in the trial of the case, the judgment is affirmed.

Reynolds, P. J., concurs; Nortoni, J., not sitting.