Adams v. New York Life Ins. Co.

• Citation: 158 Mo. App. 564,138 S.W. 921
• Parties: ADAMS v. NEW YORK LIFE INS. CO.
• Decision Date: 30 June 1911
• Court: Court of Appeal of Missouri (US)

138 S.W. 921

158 Mo. A. 564

ADAMS v. NEW YORK LIFE INS. CO.

St. Louis Court of Appeals. Missouri.

June 30, 1911.

DEATH (§ 2) — PRESUMPTION FROM ABSENCE — STATUTES — EVIDENCE.

Rev. St. 1909, § 6340, provides that, if any person who shall have resided in the state goes from and does not return thereto for seven successive years, he shall be presumed to be dead, in any case wherein his death shall be in question, unless proof be made that he was alive within that time. Held that, where plaintiff's husband, who was a defaulter, left the state, proof that he was seen in the Hawaiian Islands five months thereafter was insufficient to rebut the presumption that he was dead, in an action on a life policy, where the proof showed that he had not been seen nor heard from for more than seven years after he had been so seen in Hawaii.

Appeal from Circuit Court, Audrain County; J. D. Barnett, Judge.

Action by Anna Adams against the New York Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Jones, Jones, Hocker & Davis, for appellant. Robertson & Robertson, for respondent.

NORTONI, J.

This is a suit on a policy of life insurance. Plaintiff recovered, and defendant prosecutes the appeal.

The policy sued upon was issued by defendant upon the life of Philip S. Adams, payable to plaintiff, his wife, upon his death. A number of years ago the original policy was converted into a paid-up policy for the amount of $1,900, and this amount is conditioned to be payable to plaintiff on the death of her husband, the insured. The insured, Philip S. Adams, disappeared from his home at Fulton, Mo., January 13, 1902, and the presumption of death is relied upon for a recovery, because of his continuous absence for more than seven years, without tidings.

It is first urged that the petition is insufficient, for the reason it omits to aver that Adams is dead. From the original petition incorporated in defendant's abstract, it appears this averment is absent, but the question is concluded to the contrary by the showing of a sufficient petition in an additional abstract filed here by plaintiff. In due time plaintiff filed an additional abstract, setting forth the petition on which the case was tried, together with certain proceedings had in the trial court permitting her to amend by inserting an averment to the effect that the insured is dead. The amended petition contains an averment that Adams, the insured, is dead. This additional abstract so filed by plaintiff is not controverted by defendant, as required by the statute (section 2048, Rev. St. 1909), and in such circumstance the law presumes the showing made therein to be true, for by omitting to controvert the additional abstract under the statute defendant is to be treated as having confessed it. Reedy Elev., etc., Co. v. Mertz, 107 Mo. App. 28, 80 S. W. 684; Patterson v. Gallimore, 79 Mo. App. 457. The point made against the sufficiency of the petition should be overruled.

There is no direct evidence that Adams, the insured, is dead, but the presumption of seven years' continuous absence from the state, without tidings suggesting that he continued to live, is relied upon as proof of that fact. It appears that Adams was cashier of a bank at Fulton, Mo., where he had resided for many years, and from whence he suddenly departed, January 13, 1902. He is shown to have been generally regarded as a good citizen, who was especially fond of and affectionate toward his family. Neither his wife, the plaintiff, nor others were informed as to his intentions when he went away, but it appears the bank of which he was cashier failed a few days thereafter, and there is considerable evidence in the record tending to prove he was short in his accounts. Adams was seen by an old acquaintance in the state of Texas two days after leaving Fulton, and said that he was then en route to San Antonio in that state. The evidence for plaintiff goes to the effect that neither she nor other members of the family had heard from her husband since his departure, except in this one instance, where he was casually met by Mr. Bush in Texas on January 15th, two days after leaving his home.

For defendant the evidence tends to prove that a former acquaintance, one Yates, met the insured at Honolulu, Hawaiian Islands, and spent a month with him in June and July of the year that he disappeared — 1902. This witness says that he accompanied Adams to the steamer, and he sailed from Honolulu for Japan. Another witness for defendant said that he thought he saw Adams at Lake Charles, La., about the year 1904 or 1905, but would not be positive that it was he, though he had known him for a number of years. One other witness said that just before Christmas, 1904, he saw a man through a window of a boarding house in Memphis, Tenn., who looked like Adams, and that he thought it was he, but was not sure. This witness, too, had known Mr. Adams for a number of years. This suit on the policy was filed on April 26, 1910, so it appears that, though it be true the witness Yates spent a month with Adams in Honolulu during June and July, 1902, and accompanied him to the steamer when he took passage for Japan, more than seven years elapsed thereafter before the suit was filed.

The only issue in the case pertains to the death of Adams, and the controversy here in a measure relates to the sufficiency of the proof on that score. A jury was waived and the matter was tried before the Circuit Court, which found the issue for plaintiff as though Adams, the insured, was dead before the suit was instituted. Though the evidence for defendant tended to prove Adams was short in his accounts, it does not appear that he was indicted, and by the giving of defendant's first declaration of law it appears the court found as...