144 Mo. App. 483 | Mo. Ct. App. | 1910
This action was commenced in the circuit court of the city of St. Louis, by respondent, who claims to be the widow of one Lewis J. Springmeyer, against the appellant, a benevolent organization, of which Springmeyer was a member, and the action is on certificate issued by the appellant to Springmeyer on the 6th day of November,-1897. The cause was tried before a jury on the 16th day of April, 1908, resulting in a verdict in favor of the respondent, in the sum of $2186, the full amount of the certificate. A judgment was rendered upon the verdict, and after an unsuccessful motion for new trial, the defendant appealed.
There was no direct evidence of the death of the plaintiff’s husband; but the fact was sought to be established by circumstances, the chief of which was the disappearance of said insured person from his home, and from the knowledge of his family, and the inability to learn of his whereabouts 'after diligent effort for that purpose had been made. If giving the evidence the most favorable construction of which it is capable in favor of the appellee, the jury was warranted in finding the death of the plaintiff’s husband, then the judgment should not be reversed for failure of proof.
On the part of the plaintiff, it is claimed that her husband left her on the 5th day of July, 1905, and she had not heard of him since that time; that at the time of his disappearance he was working as a day laborer and had been so employed at the place where he was working at the time he disappeared for about a year and a half; that he lived on Conde street in the city of St. Louis with his wife and two children of tender years; that the husband had steady employment and brought his money home to her and that she gave him in return what money he needed for his own purposes; that he got along with his wife and children very well, except at times when he became dissatisfied and angry, and at such times threw the dishes and other things at the different members of his family; that he came home from his work on the 5th day of July, 1905, gave her his wages and a receipt for the rent he had paid, made some changes in his clothes, took a ring and watch chain he had been wearing and laid them on the sideboard with the remark that he did not want to wear them all the time as they would get spoiled. When he left home he said he was going to attend his lodge meeting, and plaintiff told him the lodge did not
The plaintiff also offered testimony tending to prove that on two occasions at least, her husband had said that when he committed suicide they would not find his body as he would tie a large rock to it and sink it to • the bottom of the river; that diligent inquiry was made for his whereabouts and an advertisement was published in the Sovereign Visitor, the lodge paper of the appellant, and a like advertisement was published in different papers in the city of St. Louis, but no trace of her husband had ever been found.
On behalf of defendant, testimony was offered tending to prove that all was not pleasant in the domestic relations of plaintiff and her husband, and that on different occasions he complained of his situation.' In addition to the above, the defendant offered a witness who testified that he wras a member of the lodge and was acquainted with plaintiff’s husband, and that he saw Mm and talked with him on the 7th day of July, 1905, at the round house of the Burlington Railroad Company, in the city of St. Louis; that he asked him if he was-working and. he said he had quit and was going to leave his home because.he could not get along with his wife, ■and that he-walked away, going in the opposite direction from the river. At the time this witness claimed that he-had the conversation with the plaintiff’s husband, he lived about fifty yards from Mr. Springmeyer and was informed by his wife when he went home that Mr. Springmeyer was gone, but admits he did not tell Mrs. Springmeyer about having the conversation with him because he thought Springmeyer would return.
The evidence further shows that Springmeyer was a poor man, possessed of but little property.
The instructions given in behalf of plaintiff, properly submitted plaintiff’s theory to the jury. In behalf of the defendant the following instruction was asked: “The court instructs the jury that if the jury find from
The rule seems to be well established in this country that where one, steady in his habits, successful in his profession or business, conténted and respected, having a fixed residence and pleasant domestic relations, suddenly disappears and no tidings of him are received, such circumstances, if satisfactory to the jury, may warrant them in finding his death at or about the time of his disappearance. [Tisdale v. Ins. Co., 26 Ia. 170, 96 Am. Dec. 136; Hancock v. Ins. Co., 62 Mo. 26; Northwestern Life Ins. Co. v. Stevens, 71 Fed. 258; Spahr v. Life Ins. Co., 108 N. W. 4; Modern Woodmen of America v. Joseph Gerdom, 82 Pac. 1100, 2 L. R. A., N. S. 801; Seeds v. Grand Lodge, 61 N. W. 411; Magness v. Modern Woodmen of America, 123 N. W. 169; Carpenter v. Sup. Council Legion of Honor, 79 Mo. App. 597.]
Where one has been absent and unheard of for seven years, the presumption arises that he is then dead, hut not that he died at any particular time theretofore. Where the legal limit of seven years is not relied upon, the burden of proving the death within that period is cast upon the party affirming that fact. To do so, however, it is not indispensable that the proof offered for that purpose should show the missing person was subject to any specific peril at any particular time. It is enough to adduce evidence of any other circumstances calculated to shorten the life before the lapse of seven years. [Lancaster, Admr., v. Ins. Co., 62 Mo. 121; Hancock v. Ins. Co., 62 Mo. 26; Carpenter v. Sup. Council, 79 Mo. App. 597.]
But the legal presumption of death permitted upon the lapse of seven years, is not allowable unless there is evidence tending to prove that death occurred at an earlier date, or' showing a greater probability of death
In the case of Hancock v. Ins. Co., supra, the insured was a single man, who, for years previous to his alleged death, had been in the habit of spending his time in the south, engaged in mining speculations. He left the south and for some time visited friends and relatives in Illinois, and from there went east, and during the winters of 1860 and 1861, boarded with a Dr. Scott, in New York City. The Rebellion at that time was about to commence, and he was an outspoken sympathizer with the southern people and declared his purpose to go and assist them in their struggle. About the first of March, 1861, he left his room with the intention of going to Brooklyn, and did not return. His clothes and valise were found in his room, but they were of little value. His friends and relatives testified that they never heard of him after that time. It appeared that he was indebted to the man with whom he boarded and others for borrowed money, and the suit was not commenced until seven years after his disappearance. The court held that under the evidence, there was no presumption that the insured died within seven years from the time he was last heard of.
One of the leading cases in this country is Tisdale v. Ins. Co., reported in the 26 Iowa 170, and the Supreme Court of our State reviews that case approvingly in the Hancock case, but says: “There can be no analogy between them.” In the Iowa case, the insured was a young man of exemplary habits, fair business prospects, respectably connected, and of the most happy domestic relations. He had the fullest confidence of his friends and the entire affection of his wife, and was living in apparent happiness with no cause of discontent with his condition which Avould have caused him to break the domestic and social ties which he was so pleasantly enjoying. On Sept. 25, 1866, he visited Chicago
In Lancaster v. Ins. Co., supra, the suit was commenced within seven years after the disappearance of the insured, and a recovery was permitted. It was claimed that the evidence was insufficient to submit the issue of death to the jury. The court declared the rule as follows: “Under the rule adopted by this court, circumstances other than those of particular peril calculated to shorten or destroy life, may be sufficient to raise a presumption of the death of an absent person from whom no tidings have been received, without regard to the duration of such absence.”
In that case the insured took passage at Chicago on a steamboat for Detroit. He appeared to be sick and remained in his state room and took his meals there. Sometime during the night in which the steamer reached Detroit, the insured disappeared and was not afterwards heard of. The plaintiff offered testimony to the effect that the insured did not leave the steamboat at Detroit, but was missing when the boat arrived at that city, and therefore, there was the strong circumstance that the insured was on the steamboat when it left Chicago, was sick and despondent, and when the boat arrived at Detroit, he was missing, and his personal property was found on the boat.
We believe that without an exception, the courts require more proof of mere absence in order to raise an issue as to the death of a person where the period of absence is less than seven years, and there must be other facts and circumstances shown in order to overcome the presumption of life. [Seeds v. Grand Lodge, 61 N. W. 411; Ryan v. Tudor, 31 Kans. 366; Hyde Park v. Canton, 130 Mass. 505; Lewis v. Mobley, 20 N. Car. 323.]
The facts and circumstances relied on in this case to overcome the presumption of life, are, that the de
As we have stated in a former part of this opinion, Tisdale v. Ins. Co. is one of the leading cases on the question now under discussion. In that case it was said: “Any facts or circumstances relating to the character, habits, condition, affections, attachments, prosperity, and objects of life, which usually control the conduct of men, and are the motives of their actions, aré competent evidence from which may be inferred the death of one absent and unheard from, whatever has been the duration of such absence.”
In Seeds v. Grand Lodge, supra, the Supreme Court of Iowa, (in which the Tisdale case was decided) reviewed that case in another cause, wherein the insured had been unheard- of for more than seven years, but had been seen and heard of after he had left his wife, and at such time was claiming to be a single man. The evidence showed he was healthy and the court said (after making the above quotation from the Tisdale case): “Surely, The character, habits, condition, affections, attachments, prosperity and object in life’ of Edward Rowell, as shown in the evidence, do not warrant the conclusion even after a lapse of seven years, that his absence and silence are in consequenc of death. On the contrary, they show that his absence and silence are vol
In Modern Woodmen of America v. Gerdom, 82 Pac. 1100, the Supreme Court of Kansas declared the rule in the following language: “It is. true 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. But in all such instances the death of the absent party must fairly be demonstrated by the circumstances of the disappearance. And in some cases the age, health, 'disposition, moral character, domestic relations, social rank, and financial condition of one who suddenly disappears may themselves, without the aid of other circumstances, stifle all doubt that the person is dead. But the strength of the induction of death lies in the cogency of the circumstances of disappearance, and not in the fact of absence long protracted.”
In Spahr v. Mutual Life Ins. Co., supra, the insured had been absent and unheard of for seven years when the suit was commenced. The plaintiff, his wife, brought an action against the defendant on a policy to recover two thousand three hundred dollars. The defense was that the insured was still living. There was a judgment in favor of the plaintiff and the defendant appealed. The case is a recent one, decided by the Supreme Court of Minnesota, on the 13th day of July, 1906. The court, after adopting the above quotation from the Tisdale case, said: “The rule is based upon the reasonable probability that a man of such character and so circumstanced would, if alive, communicate with his family. The plaintiff attempted to establish the fact that the insured was a man of such character and so circumstanced. The evidence tended to show that he was a clergyman of education and culture; that he was sue
In behalf of the defense, the testimony tended to prove that although a clergyman he was a drunkard and a libertine, and when drunk abused his wife. One witness testified that the insured came to Salt Lake City about April 1, 1898, and there remained until November of that year, and the court said there was nothing in the testimony of this witness to indicate that her testimony was not credible. There was further testimony that he paid considerable attention to an unmarried woman and asked her to secretly marry him. Upon this evidence the court held that there was no presumption that the insured died within seven years from the time he left his home and was unheard of, and as it was necessary to prove that he died within seven years, the verdict for the defendant was upheld.
In Donovan v. Twist, 93 N. Y. S. 990, it is held that evidence that a person had left his wife and children to go to another city, and had not been heard from for sixteen years, was sufficient to raise a presumption of death, when considered in connection with the fact that after leaving home he was known to be living in adultery.
The whole theory of plaintiff’s case is, that on the evening of July 5, 1905, the insured left his home with the intention of committing suicide, and that he did not return that night or afterwards, because he was dead.
The defendant’s refused instruction was based squarely upon the testimony of the defendant to the ef
We are asked to reverse the judgment without remanding the cause for new trial, and if we could take' the testimony of the witness who claims he saw and talked with the deceased on the 7th, to be true, we would not hesitate to do so. Since the trial, considerable time has elapsed, and it may be that other facts may develop on another trial which will justify the submission of the case to the jury, and therefore, we will reverse the judgment and remand the cause.