Bradley v. Modern Woodmen of America

124 S.W. 69, 146 Mo. App. 428, 1910 Mo. App. LEXIS 487

• Court: Missouri Court of Appeals
• Decided: January 4, 1910
• Status: Published

Opinion

GOODE, J.

(after stating the facts). — 1. The main errors assigned in this case are upon the rulings on requests for instructions, and in support of these rulings plaintiff’s counsel invoke both the presumption enacted in the statute quoted in the statement (Revised Statutes 1899, sec. 3144), and also the common law presumption of the death of a person who has not been heard of after an absence of seven years from his home. Nothing was said in the instructions for plaintiff about presumptions, and whatever clouding of the true issue in the minds of the jury may have resulted from mentioning them, was due to defendant’s requests, which referred to the presumption of death after seven years of unexplained absence. But the court must have relied on a presumption in instructing upon plaintiff’s request, that all questions were eliminated from the case except as to the date of the death of the insured, for it was not conclusively proved he was dead. This essential fact was taken for granted in the instructions and erroneously, even if either the statutory or the common law presumption was relevant to the case. The statutory presumption could only arise if it Avas conceded, or conclusively shown, Mills had left the State, and had not returned for seven successive years. It was denied he had left it and the eAddence on the point was a vague and inconclusive hearsay statement, which, if competent because not objected to, would be for the triers of the fact to weigh in passing on the issue of whether he had left the State; but no issue of the kind was submitted, and if the statutory presumption of death was relied on, it was applied arbitrarily and without finding the essential fact on which its relevancy depended.

The first instruction for plaintiff misapplied, if it counted on, the common law presumption for the reason to be stated infra. We reject the argument based on the supposed inadequacy of the search made for the insured, against plaintiff’s right to rely on the presumption, if it had been applicable. Testimony was given tending to prove enough diligence was exercised to discover his whereabouts or what had become of him, to satisfy the law, even if we accept as sound recent decisions which hold the presumption only arises when due efforts have been made to learn the fate of the missing person. [Hitts v. Ahlgren, 170 Ill. 60; Modern Woodmen v. Graber, 128 Ill. App. 585; Modern Woodmen v. Gerdom, 82 Pac. (Kans.) 1100, 2 L. R. A. ( N. S.) 809; Prudential Assur. Co. v. Edmunds, 2 App. Cas. 487; Bailey v. Bailey, 36 Mich. 185; Stichfield v. Emerson, 52 Maine 465.] The insured left home avowedly for a temporary purpose and with the intention to return; there was much evidence to show he had no motive which, according to human nature and experience, would induce him to leave permanently, and he had not returned or been heard of after a lapse of seven years, by his family, other kin, or acquaintances. These circumstances bring the presumption of death into operation when it is relevant; at least if reasonable but fruitless inquiry for the absentee has been made by those interested in him. [Biegler v. Supreme Lodge, 57 Mo. App. 419, 423; Lawson, Presumptive Evidence, Rule 44, p. 364; 29 Albany Law Journal, pp. 436, 464.]

But there was testimony in the record which ought to have been submitted to the jury as tending to dispel the presumption. A witness said the insured declared five or six months before his departure, that he had endured his family troubles as long as he could; and if this testimony was true, it conduced to prove the thought was in his mind to abandon home and family, and later his discontent may have induced him to leave home ostensibly for a temporary purpose, but with a secret resolve not to return. According to the cases most favorable to plaintiff’s cause, the court, with this evidence before the jury, should not have eliminated from their inquiry all issues except the date of the death of the insured, but should have left to them the task of finding whether or not he was dead. That is to say, the presumption of death indulged because of his long absence from home and lack of information about him, was rebuttable, and this evidence of unhappy domestic relations tended to rebut it; for such infelicity occasionally induces a husband and father to desert his family. [Dickens v. Miller, 12 Mo. App. 408; Carpenter v. Sup. Council, 79 Mo. App. 597; Winter v. Sup. Lodge, 96 Mo. App. 1; Biegler v. Sup. Council, supra; Modern Woodmen v. Graber, 128 Ill. App. 585, 588; Garwood v. Hastings, 38 Cal. 216, 229; Bowden v. Henderson, 2 Smal. & G. 360; Lawson, Presumptive Evidence, Rule 53, p. 294; Greenleaf, Evidence, sec. 278f.]

2. But the essential fact to be established by plaintiff and found by the jury was that Mills had died prior to February 2, 1901. The action was not filed until after more than seven years of unexplained absence; but it stands as to the task of making out a case for recovery, as though it had been begun at any time after the date mentioned. The aid plaintiff derives from the seven years of absence and lack of information, is not by way of presumption at the end of said period that her husband is dead, which would be the all-important fact if her case depended solely on his death having occurred before the suit was filed. But as the case stands, it does not help her at all, inasmuch as recovery depends on his being dead within about two months after he left home. What help plaintiff gets from his protracted absence without having been heard of, is due to the tendency of those two facts to prove he was dead within the two months previous to' the default in payment of an assessment; that is, before February 2, 1901. On this point a court of the highest authority said, in an action where the date of death was the vital fact:

“Mr. Taylor in the first volume of his Treatise on the Law of Evidence (sect. 157) says that ‘although a person who has not been heard of for seven years is presumed to be dead, the law raises no presumption as to the time of his death; and therefore, if any one has to establish the precise period during those seven years at which such person died, he must do so by evidence, and can neither rely! on the one hand, on the presumption of death, nor, on the other, upon the presumption of the continuance of life ’ These views are in harmony with the settled law of the English courts. In Re Phene’s Trust, Law Rep. 5 Ch. 138; Hopewell v. De Pinna, 2 Camp. N. P. 113; Reg. v. Lumley, Law Rep. I. C. C. 196; Re Lewes’ Trusts, Law Rep. 11 Eq. 236; 32 Law J. Ch. 104; 40 Id. 507; 29 Id. 286; 37 Id. 265. In the leading case in the Court of Exchequer of Nepean v. Doe, dem. Knight (2 Mec. & W. 894), in error from the Court of King’s Bench, Lord Denman, C.. J., said: ‘We adopt the doctrine of the Court of King’s Bench, that the presumption of law relates only to the fact of death, and that the time of death, whenever it is material, must be a subject of distinct proof.’ To the same effect are Mr. Greenleaf and the preponderance of authority in this country. [1 Greenl. Evid., sec. 41; Montgomery v. Bevans, 1 Sawyer, 653; Stevens v. McNamara, 36 Mo. 176; Smith v. Knowlton, 11 N. H. 191; Flynn v. Coffee, 12 Allen (Mass.) 133; Luing v. Steinman, 1 Metc. (Mass.) 204; McDowell v. Simpson, 1 Houst. (Del.) 467; Whiting v. Nicholl, 46 Ill. 230; Spurr v. Trumble, 1 A. K. Mar. (Ky.) 278; Doe ex dem. Cofer v. Flanagan, 1 Ga. 538; Smith v. Smith, 49 Ala. 156; Primm v. Stewart, 7 Tex. 178; Gibbs v. Vincent, 11 Rich. (S. C.) 323; Hancock v. Am. Life Ins. Co., 62 Mo. 26, 121; Stouvenal v. Sophins, 2 Daly (N. Y.), 310; McCartee v. Camee, 1 Barb. (N. Y.), Ch. 456" (Emphasis ours.) Davis v. Briggs, 97 U. S. 628, 634.]

The courts of this State hold there is no presumption regarding the date when a person died who has-been absent and unheard of for seven years, nor as to whether he died at the end of that period, or during it. [Hancock, Admr., v. Ins. Co., 62 Mo. 6; Winter v. Lodge, supra.] In the first of these cases it was important, as it is here, to show the death of the insured happened prior to a day, when, if he was. alive, the policy lapsed for non-payment of a premium. This day fell about three months after the insured disappeared, or a month longer than in the case at bar, and in both cases early in the seven-years period. Among other things the Supreme Court said:

“Whoever finds it important to establish death at any particular period,' must do so by some kind of evidence. The evidence need not be direct or positive; it may depend upon circumstances, but it should be of such a character as to make it more probable that the person died at a particular time, than that he survived. When a person is known to be alive at a certain time, there is a presumption of the continuance of his life, and to overcome this presumption, evidence must be adduced tending to show at what particular period he died. Mere absence, unattended, with other circumstances, will not be sufficient. In Eagle’s case (3 Abb. Pa. 218), it was said that, if it was attempted to apply the presumption short of seven years, special circumstances would necessarily have to be proved; as for example, that at the last accounts the person was dangerously ill, or in a weak state of health, was exposed to great perils of disease or accident; that he embarked on board of a vessel which has not since been heard from, though the length of the usual voyage has long since elapsed. In all such cases, if the circumstances known are sufficient to authorize the conclusion, the decease may be placed at a time short of seven years.” (62 Mo. l. c. 32.)

The rule invoked at this point partakes of the character of what Professor Thayer denominates presumptive evidence, rather than of the character of a rebuttable legal presumption, like that of death at the end of seven years’ absence. (Thayer, Evidence, Appendix A.) The learned author shows the presumption of death belongs to the class of rebuttable, as distinguished from conclusive, legal presumptions. (1 C. 541, et seq.) He says presumptions of the rebuttable kind “are certain assumptions, or legal rules, defining the amount of evidence requisite to support a particular allegation; which facts being proved, may be either explained away or rebutted by evidence to the contrary, but are conclusive in the absence of such evidence; . . . are definitions of the quantity of evidence, or the state of facts, •sufficient to make but a prima-facie case; in other words, of the circumstances under which the burden of proof lies on the opposite party.” Further on in this connection it is said: “It should be carefully remarked that in both kinds of legal presumption (meaning the conclusive and the rebuttable) there is no inference', the rule of law merely applies or attaches to the circumstances when proved and is not deduced from them” (l. c. 545). The author then proceeds to discriminate both classes of legal presumptions from presumptive evidence, or that rule of law which permits a jury to infer the fact in issue from indirect, instead of direct, evidence ■of its occurrence; as “where a person was found standing over a wounded man with a bloody sword in his hand, there is a presumption (or it may be probably inferred) that the one stabbed the other.”

The argument for defendant counts.on the supposed lack of evidence conducing to prove the insured died oven before the expiration of seven years after his departure from home, and the greater lack of proof that he died previous to the second day of February, 1901, as the instruction required. The insured was not afflicted with any disease, Avas not shown to have been exposed to unusual peril, to have meditated upon suicide, or to have been in a despondent mood which might have led to that act. Conditions such as these affecting a person who disappears unaccountably were regarded in the older cases as prerequisites of the inference of death when the absence had not lasted the full period, and perhaps in most jurisdictions the inference of earlier death Avould not be allowed now, except on proof of similar facts. But the Mav in this State is more liberal to parties with demands dependent on a finding of earlier death. Our Supreme Court has adopted the doctrine of Tisdale v. Ins. Co., 26 la. 170, wherein the Supreme Court of Iowa held the jury might infer the death of the missing person had occurred before seven years had expired, even -though he was not threatened by any of the dangers mentioned, supra; and that the conclusion of death at an earlier period could be drawn upon proof of any facts, which, according to common experience, made it probable the party, if alive, would have communicated with Ms friends. After postulating the facts in evidence, the Supreme Court of Iowa said:

“Must seven years pass, or must it be shown that he was last seen or heard of in peril, before his death can be presumed? No greater wrong could be done to the character of a man than to account for his absence, even after the lapse of a few short months, upon the ground of wanton abandonment of his family and friends. He could have lived a good and useful life to but little purpose, if those who knew him could even entertain such a suspicion. The reasons that the evidence above mentioned raises a presumption of death, are obvious; absence from any other cause, being without motive and inconsistent with the very nature of the person, is improbable.”

According to these views an instruction was declared wrong which said it must appear, in order to prove death prior to the lapse of seven years, the person alleged to be dead was subject to some specific peril which reasonably might be supposed to have caused his death; and our Supreme Court adopted the reasoning in the Hancock case, “that evidence of character, habits, domestic relations, and the like, making the abandonment of home and family improbable, and showing a want of all those motives which can be supposed to influence men to' such acts, may be sufficient to raise the presumption of death, or from which the death of one absent and unheard of, may be inferred, without regard to the duration of such absence.” [62 Mo. l. c. 34.] In Lancaster v. Ins. Co., 62 Mo. 121, 128, the Supreme Court of Missouri reiterated its concurrence in the Iowa doctrine and rejected the rule that, for the conclusion of death to be indulged before seven years have expired, there must be proof the absentee was exposed to some peril apt to shorten his life. The question is whether the principle of those authorities, and others which might be cited, Avould permit the jury to find, on the facts, in the present record, the death of the insured .occurred earlier than February 2, 1901. This question can be answered best by comparing the facts of the case at har with the facts of cases wherein the same problem was solved one way or the other. In Hancock v. Ins. Co., it was held that there was no room for presumption of death before seven years had run, for these reasons: “Morris, the insured person, had no family; he had no fixed and permanent place of abode. For years he had been residing in the South, being in different states and engaged in different places. He told his relatives that he was going back to the South. He made arrangements to introduce a patent there. He was warm in his sympathies for the Southern cause, and expressed his determination to take arms in its defense. No intention was ever shown of staying in New York, or with his friends in the North. According to his declared design, he was going South, as thousands of others did in those times.” In Lancaster v. Ins. Co., the facts indicated death by drowning, as the insured was sick and weak while on a ship and was not seen to leave it when it reached, port. In Winter v. Supreme Lodge, the insured had talked of making way with himself, and circumstances pointed to the conclusion that he had done so. The same was true in Carpenter v. Supreme Council, 79 Mo. App. 597. The last three cases are not a guide in this case, for in them the missing parties were in great peril; but the Tisdale case is a guide and a controlling precedent. Without reflecting at all on the credibility of the witness who testified regarding the quarrel between Mills and his wife and his threat to leave home, it is obvious the jury were not bound to believe this testimony; or, if they believed it, might not believe Mills carried out his threat; and especially is this so because there is much other evidence tending to prove the insured was happy in his domestic relations, strongly attached to his wife and children and without any motive to abandon them. His departure from home was several months after the date of the supposed quarrel, and there was no testimony of any family discord meanwhile. He left on an errand similar to others he had gone on before, and in the prosecution of a business he was pursuing at the time. He was not dejected in spirits; though in humble circumstances, was free from debt and was getting along apparently as well as usual; he declared he would be back in a few days, kissed his wife when he departed and apparently left no feeling in her mind of doubt about his return as promised. He was a moral man, a church member, and according to the opinion of his neighbors, a good provider and an industrious citizen. He told not only his wife, but others why he was taking the trip to Canton, and no one who saw him received an impression against the truth of what he said', or that his leaving home would he permanent, or was at all remarkable. The journey was not a long one in miles, hut he contemplated an absence of several days. From the time of bis departure there is no authentic evidence of his having been seen alive or his wagon and team having-been found, though diligent efforts were made to obtain information. These facts by themselves, and without their influence being broken by the testimony regarding the quarrel between the insured and his wife, which the jury were free to reject, would range the case by the side of Tisdale v. Ins. Co., as there is no material difference between the facts of the two cases.

As that decision has been approved by our Supreme Court, we decide on its authority there was evidence from which the jury might find the insured died prioi to the first default in an assessment; though we think the Iowa doctrine an extreme one, which tends to transfer an issue of fact from the region of proof to that of surmise.

3. In holding the case is for the jury, we emphasize the point that in order for plaintiff to recover, she must prove by the weight of the evidence her former husband died prior to February 2, 1901, and it is better to say nothing about probabilities in the instructions. In determining the question of whether his death occurred prior to said date, the jury should take into consideration his condition in life, character, habits and domestic relations, the circumstances attending his departure from home, and the fact that none of his friends, relatives or acquaintances have heard of him since; and unless, in view of these circumstances, and others which may appear in evidence, the jury believe from the evidence Mills died prior to February 2, 1901, the verdict should be for the defendant.

4. An exception was saved to the admission of the statement of Mills when he left home fot the purpose of his trip and when he Avould return. The contention is he might be prosecuted for abandoning his family, and if he meant to do so, those declarations were self-serving. In our judgment the right rule to apply is the one thus stated hv a learned commentator: “Whenever the demeanor of a person at- a given time becomes the object of inquiry, his expressions, as constituting part of that demeanor, and as indicating his present intent and disposition, cannot be properly rejected in evidence as irrelevant.” Evans note to Pothier on Obligations, II, 242. That passage is quoted in 1 Greenleaf (16 Ed.), sec. 108, and shown to be applicable to numerous instances, including those where a person “is upon a journey or leaves home, or returns thither, or remains abroad.” The rule was followed in every case cited, supra, and the point was passed on in Carpenter v. Sup. Council, 79 Mo. App. 597, 603. If the statements of an absentee concerning why he was leaving home are excluded from the jury, they will be deprived of illuminating evidence upon the main inquiry. That the person who uttered the statement of purpose may have intended to safeguard himself, should be taken account of in weighing the statement.

5. An exception was taken to the exclusion of testimony sought to be elicited from a witness on cross-examination, concerning rumors he had heard in the vicinity of the plaintiff’s home about the cause of Mills’ leaving home. These neighborhood rumors were but hearsay and do not fall within any exception we are aware of, to the rule excluding hearsay testimony. The only authority cited on this point is Dowd v. Watson, 105 N. C. 476, where it is said: “To rebut the presumption of death from absence for more than seven years without being heard from, evidence of a general report among the missing person’s friends and acquaintances that he is alive and in the United States army is admissible. . , Evidence by a witness that he had seen the missing person and he was alive is admissible.” These rulings are irrelevant to the proposition in hand. If defendant wished to avail itself of the knowledge of neighbors regarding tbe cause of Mills’ departure the rumors on the subject should have been traced to their source, and the person who started them have been called as a witness.

6. The petition ought to be amended by alleging Mills died prior to February 2,1901.

The judgment is reversed and the cause remanded.

All concur.