162 Mo. App. 546 | Mo. Ct. App. | 1912
This action was instituted December It), 1908, before a justice of the peace of the city of St. Louis to recover $158 said to be due on a policy of insurance issued August 15> 1892, by defendant on the life of one John Walsh. Letters of administration were issued to plaintiff by the probate court of the city of St. Louis, December 10,. 1908. Judgment went in favor of defendant in the justice’s court but on a trial in the circuit court plaintiff .recovered, the trial there being before the court and a jury. From this judgment, after interposing a motion fox new trial as well as in arrest, defendant has duly perfected its appeal to this court. Here the only points made by learned counsel for a reversal are, that “no positive proof has ever been presented of the death of the insured, John Walsh, and that the evidence offered at the trial in the circuit court was insufficient to raise the presumption of his death from his absence of more than seven years.” It is admitted that inasmuch as there was no conflict in the evidence, appellant introducing ho testimony, “the only question to be decided is its sufficiency and the propriety of the instructions of law given by the court.” There was evidence in the case tending to prove that John Walsh, the insured, up to 1898, lived in St. Louis; that
A witness, who testified to being a life-long and intimate friend of John Walsh, had made inquiry from two young men who had been with John in Cuba
It was admitted that all the dues called for in the policy had been paid to defendant up to the 10th of December, 1908, when plaintiff qualified as administrator and instituted this suit.
At the instance of plaintiff the court gave three instructions. The first instruction told the jury in substance that if they found from the evidence that prior to the 11th of December, 1908, and prior to the commencement of the suit, John Walsh had disappeared and had not been heard from for seven years, and if they further believed from the evidence that defendant was notified of his death and furnished such proof thereof as the circumstances of the case would permit, and if they further found from the evidence that John Walsh had died before said proof of death and bringing of the action, and the premiums due defendant had been paid up to the time of granting of letters of administration upon his estate and that plaintiff is the administrator, plaintiff is entitled to recover.
The second instruction told the jury that the fact or time of death need not be proved by positive or direct evidence but might be established by an unexplained disappearance; that if the jury believed from the evidence that prior to the 11th of December, 1908, John Walsh disappeared and has not been heard of for seven years and that considering all the other
The third instruction was that the amount of the verdict, if they found for plaintiff should be the face of the .policy with interest from the 10th of December, 1908, the date of the commencement of this suit.
At the instance of defendant the court instructed the jury, in substance, that although they might find from the evidence that John Walsh disappeared more than seven years ago, yet if they also found and believed from the evidence that at the time of such disappearance he had a probable object in leaving his last known place of abode and finding employment elsewhere without the knowledge of his relatives, then such facts rebut the presumption of death otherwise arising from disappearance and continued absence for seven years and their verdict should be for defendant.
The jury were further instructed at the instance of defendant that in arriving at a conclusion as to whether John Walsh is dead, they should take into consideration what is shown by the evidence as to his character, domestic relations, conditions and circumstances in life, making the abandonment of his home probable or improbable and as showing a probable motive for his disappearance or a probable want of such motive.
The court further instructed the jury at the instance of defendant that the fact, if they found it from the evidence to be a fact, that John Walsh left St. Louis more than seven years ago, since which time nothing had been heard from or concerning him by his immediate relatives, will not entitle plaintiff to recover, if the jury further found and believed from the evidence that there were any facts or circumstances connected with or surrounding his departure which
Defendant asked two instructions which the court refused. As the only complaint made as to these is as to the second, it is unnecessary to state the first of the refused instructions. In the second, the court was asked to instruct the jury that the burthen is upon plaintiff to establish the fact that John Walsh is dead and unless they were satisfied by the preponderance or the greater weight of the evidence, and under the other instructions of the court, that said John Walsh was dead at the time of the commencement of this action, their verdict should be in favor of defendant.
. While the evidence is somewhat meager in respect to showing inquiry as to the whereabouts of John Walsh, the evidence, such as it is, was submitted to'the jury under the most favorable possible instructions given at the instance of defendant. Nor was anything in these instructions which were given at the instance of defendant controverted or in conflict with what had been said by the court in the instructions given at the instance of plaintiff. There was evidence before the jury as to the fact of disappearance and the length of that was clearly before the jury, as also the habits, disposition and life of John Walsh before his disappearance.
While counsel for respondent states that this action is founded on section 6340, R. S. 1900 (section 3144, R. S. 1899), counsel on both sides framed their instructions on the theory, not of the statute, but of the common law. As they chose to adopt that and both acquiesced in it and the court submitted it to the jury on that theory, we consider it on that theory.
We are unable to agree with the learned counsel for appellant that the case lacks the elements necessary to recover at common law. There is evidence in the case of an unexplained absence, without any facts or
There was no error in refusing the second instruction asked by defendant.- It undertook to tell the jury that the burden of proof was on plaintiff, without any definition of what that term as there used meant. [McMillen v. Elder, 160 Mo. App. 399, 140 S. W. 917, l. c. 919.] The Supreme Court as well as the Courts of Appeals have been over this matter of the presumption of death, both at common law and under our statute, in a number of cases. The principles governing them will be found by reference to Hancock, Admr. v. American Life Ins. Co., 62 Mo. 26; Donaldson v. Lewis, 7 Mo. App. 403, l. c. 407; Biegler v. Supreme Council of Am. Legion of Honor, 57 Mo. App. 419; Winter v. Supreme Lodge K. of P., 96 Mo. App. 1, l. c. 13, 69 S. W. 662; Bradley v. Modern Woodmen of
The judgment of the circuit court is affirmed.