| Mo. Ct. App. | Mar 31, 1903
The case was here by appeal once before on substantially the same evidence as we find in the record on the present appeal.
In respect to the death of Winter, this court on the former appeal said:
*554 “The weight of authority supports plaintiff’s proposition that the inference of death deducible from the absence of Winter during seven years, in the circumstances described, does not necessarily imply that his death occurred at the end of that period. The circumstances of each case are to be weighed. If they warrant an inference of death of the individual in question at an earlier date than the close of the seven years of absence, a finding that the death so occurred may stand. Tisdale v. Insurance Co., 26 Iowa 170" court="Iowa" date_filed="1868-12-12" href="https://app.midpage.ai/document/tisdale-v-connecticut-mutual-life-insurance-7094208?utm_source=webapp" opinion_id="7094208">26 Iowa 170, 96 Am. Dec. 136, approved in Hancock v. Insurance Co., 62 Mo. 26" court="Mo." date_filed="1876-01-15" href="https://app.midpage.ai/document/hancock-v-american-life-insurance-8005242?utm_source=webapp" opinion_id="8005242">62 Mo. 26, and in Lancaster v. Insurance Co., 62 Mo. 121" court="Mo." date_filed="1876-01-15" href="https://app.midpage.ai/document/lancaster-v-washington-life-insurance-8005255?utm_source=webapp" opinion_id="8005255">62 Mo. 121. The three cases just cited are authority to sustain the ruling of the learned trial judge in submitting to the jury the issue of fact whether or not Winter died before March 10, 1894. The substance of the testimony has been given. We need not repeat it. Plaintiff was not required to establish beyond a reasonable doubt the fact
In Biegler v. Supreme Council Am. Legion of Honor, 57 Mo. App. 419" court="Mo. Ct. App." date_filed="1894-04-03" href="https://app.midpage.ai/document/biegler-v-supreme-council-of-american-legion-of-honor-8260727?utm_source=webapp" opinion_id="8260727">57 Mo. App. 419, it was held: “The sufficiency of presumptive proof of death at common law depends upon the facts of each case.”
The instruction that was condemned on the former appeal was amended at the last trial so as to conform to the opinion of this court.
The evidence at both trials being specifically the same, the former opinion holding/in effect, that it should be left to the jury to determine, from all the facts and circumstances in evidence, whether or not Winter died prior to March 10, 1894, is res adjudicatei. Chapman v. Railway Co., 146 Mo. 480; Baker v. Railroad, 147 Mo. 140" court="Mo." date_filed="1898-12-13" href="https://app.midpage.ai/document/baker-v-kansas-city-fort-scott--memphis-railroad-8013022?utm_source=webapp" opinion_id="8013022">147 Mo. 140; Carey v. West, 165 Mo. 452" court="Mo." date_filed="1901-12-03" href="https://app.midpage.ai/document/carey-v-west-8014112?utm_source=webapp" opinion_id="8014112">165 Mo. 452; Butler
On its assumption that if Gustav Winter died prior to March 10, 1894, he committed suicide, defendant asked a number of instructions, on the presumption of innocence and of the love of life as opposed to the assumed theory of suicide, which the court refused. The theory of suicide was not submitted to the jury, nor was any other theory as to the manner or cause of the death of Winter. The jury was instructed, in effect, that there were facts and circumstances in evidence from which they might infer that Winter died prior to March 10, 1894. They were not required, nor was it essential to the validity of their verdict, that they should find by what means Winter died or how he came to his death. All they were required to do, to find that he died prior to March 10,1894, was to find from the facts and circumstances in evidence that there was a greater probability that he was dead prior to that date than that he was living.
The other instructions asked by defendant are opposed to the rulings of this court on the former appeal and were properly refused.
There being no reversible error in the record, the ju'dgment is affirmed.