CAULFIELD, J.
(after stating the facts). — I. Defendant assigns as error the action of the trial court in refusing to give its demurrer to the evidence, the defendant’s theory being, that the evidence was insufficient to sustain a finding that the insured is dead. As we said in our statement of facts, there was no direct and positive proof of Springmeyer’s death, and there is no room for the presumption of death which arises from the unexplained absence of a person, unheard of, for seven years, for here the suit was brought within the seven years. The presumption is, that Springmeyer is alive, and the burden of proof is on the plaintiff to establish the contrary.
In the absence of direct or positive proof, the fact of his death might be established in either of two modes: 1. By proof that at last accounts he was in a position of particular peril, as, for example, that he was dangerously ill, or exposed to great peril of disease or accident, etc., or even that he was near a river, despondent and threatening to kill himself. [Carpenter v. Sup. Council Legion of Honor, 79 Mo. App. 597, 602.] 2. By showing that the missing person’s character, habits, condition, affections, attachments, etc., [347]*347were such as to render his absence from home and family for any cause, other than his death, improbable. [Tisdale v. Conn. Mut. Life Ins. Co., 26 Iowa, 170; Hancock, Admr. v. Life Ins. Co., 62 Mo. 26; Lancaster, Admr. v. Life Ins. Co., 62 Mo. 121; Carpenter v. Supreme Council Legion of Honor, 79 Mo. App. 597; Winter v. Supreme Lodge Knights of Pythias, 96 Mo. App. 1, 69 S. W. 662; Bradley v. Modern Woodmen, 146 Mo. App. 428, 124 S. W. 69.]
We need not consider the first mode except, perhaps, incidentally. As to the second, defendant asserts that the evidence adduced did not disclose Springmeyer’s character, habits, etc., in such a light as to render his voluntary abandonment of wife and ■children improbable, and, therefore, there was nothing which warranted submitting to the jury the question of his being dead. “In this case no such happy state of affairs existed as in the Tisdale case,” says the defendant’s counsel in his argument, and “unless the plaintiff can bring this case very close to the facts in the Tisdale case, we think the instruction for a nonsuit should have been given.” The Tisdale case (Tisdale v. Conn. Mut. Life Ins. Co., 26 Iowa, 170) is an important one, fox it gave to us the second mode above mentioned of proving or finding the fact of death. [See Hancock, Admr. v. Life Ins. Co., 62 Mo. 26.] In the Tisdale case, the missing man was of exemplary habits, excellent character, fair business prospects, respectably connected, and of the most happy ’domestic relations, and was living in apparent happiness, with no cause of discontent with his condition. But the facts are important only because they called for the application of the doctrine, that if a man’s character, condition, affections and attachments be shown to be such that his unexplained absence from any other cause than death, is improbable, the jury may infer the fact of death from such absence, because of such improbability. It is nob necessary that in this [348]*348case “such, happy state of affairs existed as in the Tisdale case.” It is sufficient if the missing man’s character, condition, affections and attachments were such as to render improbable his unexplained absence from any other cause than death. In the case of Carpenter v. Sup. Council Legion of Honor, supra, this court reasoned that the very poverty, helplessness and despondency of the missing man rendered his absence from home and friends for any other cause than death improbable.
Nor are we impressed that the probabilities in question are ordinarily for the court to determine. There is no doubt that the circumstances of a case may not warrant the submission 'of the probability of death or the improbability of life to the jury. Such was held to be the case in Hancock v. Ins. Co., supra, where it appeared that the insured was to a large degree a wanderer with no family and no fixed and permanent place of abode. He had no ties to bind him to New Tork, where his relatives dwelt, and did have an incentive and had expressed an intention to go to the indefinite ‘ ‘ South. ’ ’ But it would seem that for the trial court to refuse to submit the question to the jury, the insufficiency of the showing made to create the necessary improbability of life’s continuance, must be so apparent that reasonable minds would not differ concerning such insufficiency. When the evidence is such that the question becomes dependent upon shades of character and condition, or degrees of affection or of strength of attachment, or of the comparative controlling influences of different affections or different attachments, and reasonable minds may well differ as to absence without death being probable under the circumstances disclosed, the question should be submitted to the jury. Thus, in Bradley v. Modern Woodmen, supra, this court, in a very carefully considered opinion by Judge Goode, stated that even though the jury believed, as was testified by a witness, that the miss[349]*349ing man had quarreled with his wife and threatened to leave home, the jury might not believe that he carried out his threat; “especially is this so,” we said there, “because there is so 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.” Now, in the case at bar, the insured was a steady, sober, industrious workingman with regular employment at wages which gave comfortable provision for his family. He had had a fixed place of abode for years. During his entire married life of over eleven years he had abided with his wife and children, doing his duty by them. He was strongly domestic in his tastes and habits, spending his evenings at home with his family. He belonged to two fraternal orders and was a faithful attendant at their meetings. He belonged to this defendant order and had carried this insurance on his life for his wife’s benefit for over seven years. He appeared to have been unusually devoted to his home and family, and liked to play with the children, helped his wife in her housework, gave her his monthly wage. His sisters lived in the same city. He visited them, and to them and others he expressed contentment with his home and family. In the face of all this evidence, showing a character and condition, affections and attachments which rendered his absence for any other cause than death improbable, we are asked to set aside this verdict and declare as a matter of law that this honest man was a base deserter of wife and children, a voluntary fugitive from the city which held all that would seem to make life dear, because his wife and child testified that he was not always happy, and was addicted without good cause to moody spells, when he would sit for hours in gloomy thought, or break into violent rages for slight cause, threatening to.drown himself, and throwing things even at the baby to whom he was undoubtedly devoted; that he displayed anger [350]*350at the visits of his wife’s relatives. We do not feel constrained to thus condemn him. Even if this conduct tended to show dissatisfaction with his home and family, it was for the jury to weigh it against the other abundant evidence of devotion and satisfaction; or, if they attributed most of it to a species of melancholia, which would rather induce suicide than a flight from home and family and friends, we would not upset their verdict, for that theory finds support in the significant manner of his going, and increases the improbability of his being alive.
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CAULFIELD, J.
(after stating the facts). — I. Defendant assigns as error the action of the trial court in refusing to give its demurrer to the evidence, the defendant’s theory being, that the evidence was insufficient to sustain a finding that the insured is dead. As we said in our statement of facts, there was no direct and positive proof of Springmeyer’s death, and there is no room for the presumption of death which arises from the unexplained absence of a person, unheard of, for seven years, for here the suit was brought within the seven years. The presumption is, that Springmeyer is alive, and the burden of proof is on the plaintiff to establish the contrary.
In the absence of direct or positive proof, the fact of his death might be established in either of two modes: 1. By proof that at last accounts he was in a position of particular peril, as, for example, that he was dangerously ill, or exposed to great peril of disease or accident, etc., or even that he was near a river, despondent and threatening to kill himself. [Carpenter v. Sup. Council Legion of Honor, 79 Mo. App. 597, 602.] 2. By showing that the missing person’s character, habits, condition, affections, attachments, etc., [347]*347were such as to render his absence from home and family for any cause, other than his death, improbable. [Tisdale v. Conn. Mut. Life Ins. Co., 26 Iowa, 170; Hancock, Admr. v. Life Ins. Co., 62 Mo. 26; Lancaster, Admr. v. Life Ins. Co., 62 Mo. 121; Carpenter v. Supreme Council Legion of Honor, 79 Mo. App. 597; Winter v. Supreme Lodge Knights of Pythias, 96 Mo. App. 1, 69 S. W. 662; Bradley v. Modern Woodmen, 146 Mo. App. 428, 124 S. W. 69.]
We need not consider the first mode except, perhaps, incidentally. As to the second, defendant asserts that the evidence adduced did not disclose Springmeyer’s character, habits, etc., in such a light as to render his voluntary abandonment of wife and ■children improbable, and, therefore, there was nothing which warranted submitting to the jury the question of his being dead. “In this case no such happy state of affairs existed as in the Tisdale case,” says the defendant’s counsel in his argument, and “unless the plaintiff can bring this case very close to the facts in the Tisdale case, we think the instruction for a nonsuit should have been given.” The Tisdale case (Tisdale v. Conn. Mut. Life Ins. Co., 26 Iowa, 170) is an important one, fox it gave to us the second mode above mentioned of proving or finding the fact of death. [See Hancock, Admr. v. Life Ins. Co., 62 Mo. 26.] In the Tisdale case, the missing man was of exemplary habits, excellent character, fair business prospects, respectably connected, and of the most happy ’domestic relations, and was living in apparent happiness, with no cause of discontent with his condition. But the facts are important only because they called for the application of the doctrine, that if a man’s character, condition, affections and attachments be shown to be such that his unexplained absence from any other cause than death, is improbable, the jury may infer the fact of death from such absence, because of such improbability. It is nob necessary that in this [348]*348case “such, happy state of affairs existed as in the Tisdale case.” It is sufficient if the missing man’s character, condition, affections and attachments were such as to render improbable his unexplained absence from any other cause than death. In the case of Carpenter v. Sup. Council Legion of Honor, supra, this court reasoned that the very poverty, helplessness and despondency of the missing man rendered his absence from home and friends for any other cause than death improbable.
Nor are we impressed that the probabilities in question are ordinarily for the court to determine. There is no doubt that the circumstances of a case may not warrant the submission 'of the probability of death or the improbability of life to the jury. Such was held to be the case in Hancock v. Ins. Co., supra, where it appeared that the insured was to a large degree a wanderer with no family and no fixed and permanent place of abode. He had no ties to bind him to New Tork, where his relatives dwelt, and did have an incentive and had expressed an intention to go to the indefinite ‘ ‘ South. ’ ’ But it would seem that for the trial court to refuse to submit the question to the jury, the insufficiency of the showing made to create the necessary improbability of life’s continuance, must be so apparent that reasonable minds would not differ concerning such insufficiency. When the evidence is such that the question becomes dependent upon shades of character and condition, or degrees of affection or of strength of attachment, or of the comparative controlling influences of different affections or different attachments, and reasonable minds may well differ as to absence without death being probable under the circumstances disclosed, the question should be submitted to the jury. Thus, in Bradley v. Modern Woodmen, supra, this court, in a very carefully considered opinion by Judge Goode, stated that even though the jury believed, as was testified by a witness, that the miss[349]*349ing man had quarreled with his wife and threatened to leave home, the jury might not believe that he carried out his threat; “especially is this so,” we said there, “because there is so 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.” Now, in the case at bar, the insured was a steady, sober, industrious workingman with regular employment at wages which gave comfortable provision for his family. He had had a fixed place of abode for years. During his entire married life of over eleven years he had abided with his wife and children, doing his duty by them. He was strongly domestic in his tastes and habits, spending his evenings at home with his family. He belonged to two fraternal orders and was a faithful attendant at their meetings. He belonged to this defendant order and had carried this insurance on his life for his wife’s benefit for over seven years. He appeared to have been unusually devoted to his home and family, and liked to play with the children, helped his wife in her housework, gave her his monthly wage. His sisters lived in the same city. He visited them, and to them and others he expressed contentment with his home and family. In the face of all this evidence, showing a character and condition, affections and attachments which rendered his absence for any other cause than death improbable, we are asked to set aside this verdict and declare as a matter of law that this honest man was a base deserter of wife and children, a voluntary fugitive from the city which held all that would seem to make life dear, because his wife and child testified that he was not always happy, and was addicted without good cause to moody spells, when he would sit for hours in gloomy thought, or break into violent rages for slight cause, threatening to.drown himself, and throwing things even at the baby to whom he was undoubtedly devoted; that he displayed anger [350]*350at the visits of his wife’s relatives. We do not feel constrained to thus condemn him. Even if this conduct tended to show dissatisfaction with his home and family, it was for the jury to weigh it against the other abundant evidence of devotion and satisfaction; or, if they attributed most of it to a species of melancholia, which would rather induce suicide than a flight from home and family and friends, we would not upset their verdict, for that theory finds support in the significant manner of his going, and increases the improbability of his being alive. [See Carpenter v. Supreme Council Legion of Honor, 79 Mo. App. 597.] The demurrer to the evidence was properly refused.
II. The case was well and fairly submitted to the jury by the instructions given at the request of the plaintiff, but we may notice one, offered by the defendant, the refusal of which the defendant assigns as error. It told the jury that if they believed from the evidence “that Springmeyer was seen alive after the 5th day of July, 1905,” they should find for the defendant. This instruction seems to savor too strongly of singling out and giving prominence to the testimony of one of the defendant’s witnesses, and to lay too much stress upon the exact day of Springmeyer’s death. There is no question here of the payment of dues or premiums, and we see no reason why a finding that he died on or about July 5, 1905, was not sufficient. Such a finding was what the instructions given called for. That the exact time of the death was not deemed of any particular importance by defendant at the trial is indicated by the language of its admission as follows: “Mr. D'avis: (reads answer of the defendant.) “If the court please, so far as formal proof is concerned, I will state that the only issue in this case is whether Louis Springmeyer is dead or not, and I think that so far as the issue is concerned, the fact that the organization issued a certificate to him, [351]*351that he was a member of the Woodmen of the World, is admitted, and we simply take issne on the question of whether or not he is dead and it will simplify the case on that admission, I think. The whole issue in the case may be riveted down to the question of whether Louis Springmeyer is living o,r dead.” By the Court: “That is, you admit that the certificate was issued?” By Mr. Davis: “We admit that the certificate was issued and that if he is dead the widow is entitled to it, and if he is alive, she is not.” By the Court: “They have complied with the conditions of the policy?” By Mr. Davis: “Yes, we will concede everything except the death of Springmeyer, and that is the issne in this case.” By Mr. Fensky: “It is also conceded that Mary Springmeyer is the widow, was the wife of Louis Springmeyer.” By Mr. Davis: “Oh, yes, we will admit that.” (The italics are our own.) We see no error in the refusal of this instruction.
III. The instructions given by the court allowed the jury to find, and the jury did find, for the plaintiff in the full amount prayed, including the $100 which the certificate provided should be paid “for the placing of a monument at his (Springmeyer’s) grave.” Defendant asserts that there was no grave and that therefore this $100 allowance was excessive. This point is not open to the defendant. Its admission of plaintiff’s .right to recover if Springmeyer is dead is broad and unqualified, and must be construed as conceding the plaintiff’s right to have the full amount, as prayed, if Springmeyer is dead. No intimation to the contrary was given at the trial or in the instructions offered by the defendant, so we conclude that such right was conceded at the trial and cannot be attacked on this appeal. In this respect we may add, however, that plaintiff’s counsel in his brief asserts that the parties have stipulated that the, $100 may be deducted [352]*352from the final judgment, and nothing we have said is to be taken as diminishing the force and effect of that stipulation. The judgment is affirmed.
Reynolds, P. J., and Nortoni, J., concur.