In re Chicago & NW Ry. Co.

• Citation: 138 F.2d 753
• Decision Date: 11 December 1943
• Docket Number: No. 8280.,8280.
• Parties: In re CHICAGO & N. W. RY CO. CARLSON v. THOMSON.
• Court: U.S. Court of Appeals — Seventh Circuit

138 F.2d 753 (1943)

In re CHICAGO & N. W. RY CO.

CARLSON v. THOMSON.

No. 8280.

Circuit Court of Appeals, Seventh Circuit.

November 15, 1943.

Rehearing Denied December 11, 1943.

Joseph Keig, of Chicago, Ill., and B. Jay Knight and Charles H. Davis, both of Rockford, Ill., for appellant.

Nelson Wilcox and Lowell Hastings, both of Chicago, Ill., for appellee.

Before KERNER and MINTON, Circuit Judges, and LINDLEY, District Judge.

KERNER, Circuit Judge.

Appellant, as administratrix of the estate of Charles A. Anderson, deceased, filed a claim for pension payments claimed to be due from the debtor, Chicago & North Western Railway Company. Anderson had been employed by the debtor for more than forty-five years, and on October 1, 1930, had been placed on a pension allowance to be paid until his death. The claim was referred to a special master for hearing and report. The master heard the evidence, concluded that Anderson, the pensioner, died by presumption of law on December 20, 1939, and recommended the allowance of the claim for $2,856. The District Court held that the burden of proof was on the appellant to show that Anderson was alive from December 21, 1932, to December 20, 1939, and disallowed the claim on the ground that appellant had failed to establish that Anderson was alive after December 21, 1932.

On December 18, 1932, Anderson, then seventy-two years of age, boarded a train at Chicago, with the intention of visiting a daughter in Los Angeles, California. He had papers identifying him and $15 in cash upon his person, was in good health, and not under any financial strain or difficulty. His physical condition was not different from that of men his age who have worked out of doors, except that he was hard of hearing and more or less melancholy because of the loss of his wife, although prior to his wife's death he had been cheerful and of a friendly nature. When Anderson boarded the Pullman car, the porter was asked by his daughter to look after him. While en route, Anderson bothered no one, kept mostly to himself, but conversed at times with the porter. At several stations along the way Anderson, with his hat, overcoat and bag, left the train, stating that was his destination. On being told that he was in error, he re-entered the car without objection. When the train arrived at Yermo, California, on December 21, at about 2:30 P.M., Anderson alighted and started toward the engine, remarking "that it was a short cut." The porter got him back on the train, but just before the train pulled out of the station Anderson got off again, leaving his overcoat and bag on the train. When the porter discovered that Anderson was not on the train, he immediately notified the conductor, and at the next station a telegram was sent to the station agent at Yermo. At Yermo, Anderson spoke to one Knadler, debtor's car inspector, and to Coyle, the station agent. He then went to a butcher shop, but left before he was served. An intensive search was immediately made, extending from Los Angeles to Salt Lake City, but no one ever saw him or identified any remains which proved to be his, except that one Jack Davis said he met Charles Anderson on Christmas Day at Las Vegas, California. An investigation in the vicinity of Yermo, made in November, 1941, by the trustee of debtor, failed to disclose any trace of a body which might have been that of Anderson.

Yermo is a small desert town with a population of 400. Just north and northwest of the town are the Calico Mountains, ranging in height from 400 to 2500 feet, in which are a large number of canyons, numerous abandoned mines and mine pits, and in the vicinity are stretches of untraveled desert country. The foot hills of the mountains are within a mile of the railroad.

Of course, appellant's right to recover depends upon the continued existence of Anderson after December 21, 1932. From what we have said thus far, it is clear that appellant's claim is based upon the fact that Anderson lived and is presumed to have lived for seven years from December 21 or December 25, 1932, at which time he disappeared and has not been heard from since.

When a thing is shown to exist, its continuance is presumed until the contrary is shown or a conflicting presumption arises, Reedy v. Millizen, 155 Ill. 636, 40 N.E. 1028, and the law presumes that a person shown to be alive at a given time remains alive until the contrary is proved or a different presumption arises, Eddy v. Eddy, 302 Ill. 446, 453, 134 N.E. 801. So, if a person is absent for seven years without his whereabouts being known and without having been heard from during that period, such disappearance, at the expiration of that time, creates a rebuttable presumption of death, establishing not only the fact of death, but also the time at which the person shall first be accounted dead, Donovan v. Major, 253 Ill. 179, 182, 97 N.E. 231, and in the absence of contravening facts, it will be presumed that...