Bergman v. Supreme Tent, Knights of Maccabees of World
| Decision Date | 06 April 1920 |
| Citation | 220 S.W. 1029,203 Mo.App. 685 |
| Parties | MARY BERGMAN, Non Compos Mentis, by MARION BERGMAN, her Guardian, Respondent, v. SUPREME TENT, KNIGHTS OF THE MACCABEES OF THE WORLD, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Wilson A. Taylor, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
R. P. & C. B. Williams for appellant.
D. D Aitkin of Counsel.
(1) There was a cause and motive for the disappearance of the assured consistent with a continuation of his life. The plaintiff offered no evidence sufficient to overcome the presumption of the continuation of life and to authorize the jury to find the death of the assured prior to seven years' absence. The demurrer to the evidence, therefore should have been sustained. Hancock v. Life Ins Co., 62 Mo. 26; Lancaster v. Life Ins. Co., 62 Mo. 121; Lawson on Presumptive Evidence, page 251, and authorities cited; Kranz v. Great Council, 13 Mo.App. 341; Tisdale v. Ins. Co., 62 Iowa 170; Seeds v. Grand Lodge, 61 N.W. 411; Whiting v. Nichols, 46 Ill. 230; Reedy v. Milligen, 155 Ill. 536; Bailey v. Bailey, 36 Mich. 181; Smith v. Knowlton, 11 N.H. 191; Clark's Executors v. Canfield, 15 N.J.Eq. 119; In re Eagle, 3 Abb. Proc. 218; Burr v. Sim, 4 Whart. 150; Northwestern Mutual Life Ins. v. Stephens, 71 F. 258; Flood v. Growney, 125 Mo. 262. (2) The court erred in admitting in evidence the letter written by the assured to his chlidren, marked "Plaintiff's Exhibit D." A declaration of intention to commit suicide, unaccompanied by any act, and no part of the res gestae, is not admissible in evidence for any purpose. Greenacre v. Filby, 114 N.E. 532; Nordgren v. The People, 211 Ill. 425, 71 N.E. 1042; Siebert v. The People, 143 Ill. 571, 32 N.E. 431; The Commonwealth v. Felch, 132 Mass. 22; 2 Bishop on Criminal Procedure, par. 623. (3) The court erred in admitting in evidence the letters of administration taken out by the plaintiff on the estate of the absentee. The defendant was not a party to that proceeding and it is only in cases where the administrator is a party to the suit that the letters of administration are admissible in evidence as being prima-facie evidence of death. Mutual Benefit Life Ins. Co. v. Tisdale, 91 U.S. 238, 23 Law Ed. 314; Hegler v. Falkner, 153 U.S. 109, 38 Law Ed. 653; Jones on Evidence, sec. 609, 626. (4) It was prejudicial and misleading for the court to assume, as was done in instruction No. 1 given for the plaintiff, that the conditions and circumstances of the disappearance constituted an "unexplained" disappearance. Defendant's contention was that the conditions mentioned in the instruction fully accounted for and explained the absence of Bergman upon a reasonable theory consistent with continued existence. (5) All the legal presumptions are against the theory of death by suicide. There is no evidence of any other manner of death in the record, and no legal evidence of that manner of death. Brunswick v. Standard Accident, 213 S.W. 50; Lawson on Presumptive Evidence, p. 241; Guardian v. Hogan, 80 Ill. 35; Germain v. Brooklyn, 26 Hun. 604; Continental v. Delfeuch, 82 Pa. St. 235; See Point 2.
Muench, Walther & Muench for respondent.
(1) The letters of administration upon the estate of Joseph Bergman were properly admitted and were prima-facie evidence of the fact of his death. Lancaster, Admr v. Washington L. Ins. Co. of N. Y., 62 Mo. 121, 128; Davis v. Gillilan, 71 Mo.App. 498; Tisdale v. Conn. Mut. L. I. Co., 26 Iowa 170; In re Ketcham's Est., 5 N.Y.S. 566; Cunningham v. Smith's Adm., 70 Pa. St. 458; Jeffers v. Radcliff, 10 N.H. 242; Newman v. Jenkins, 10 Pick. 515; Munro v. Merchant, 26 Barb. 383; Seibert v. True, 8 Kans. 52; French v. Frazier, 7 J. J. Marsh, 425; Ruoff v. Bank, 82 N.Y.S. 881; Bacon on Life and Acc. Ins. (4 Ed.), sec. 647; 17 Corp. Jur., 1177. (2) The letter written by insured to his children, marked "Plaintiff's Exhibit D," was admissible as part of the res gestae. Carpenter v. Supr. C'l L. of H., 79 Mo.App. 597; Bradley v. Modern Woodmen, 146 Mo.App. 449; Richey v. W. O. W., 163 Mo.App. 235; Springmeyer v. Woodmen, 144 Mo.App. 486; Mut. L. I. Co. v. Hillmore, 145 U.S. 285; Travelers Ins. Co. v. Sheppard, 85 Ga. 751; Sheldon v. Ferris, 45 Barb. 128; Samberg v. K. O. T. M., 158 Mich. 568; Bacon on L. and Acc. Ins. (4 Ed.), sec 647. (3) Instruction No. 1 is a correct statement of the law and is in substantially the form approved by this court in Winter v. Supreme Lodge K. of P., 101 Mo.App. 550. (4) The plaintiff's evidence made out a strong prima-facie case of death of the insured prior to the date of his suspension from defendant Order. Plaintiff "was required merely to furnish proof which tended to show that fact and to make it appear to the jury more probable or credible than otherwise; that is to say, by a preponderance of the evidence." Winter v. Supreme Lodge K. of P., 96 Mo.App. 1 and 101 Mo.App. 550; Carpenter v. Sup. C'l L. of H., 70 Mo.App. 597; Springmeyer v. W. O. W., 163 Mo.App. 338; Bradley v. Modern Woodmen, 146 Mo.App. 449; Lancaster v. Washington L. I. Co., 62 Mo. 121; Tisdale v. Ins. Co., 26 Iowa 170; Boyd v. L. I. Co., 34 La. Ann. 848; John Hancock M. L. I. Co. v. Moore, 34 Mich. 42; Supr. C'l C. B. L. v. Boyle, 10 Ind.App. 301; Harvey v. Fidelity & Casualty Co., 200 F. 925; Garden v. Garden, 2 Houst 574; Cox v. Ellsworth, 18 Nebr. 664; Coe v. Nat. C'l K. & L. of S., 96 Neb. 130--L. R. A. 1915, p. 744--note; Bacon on L. and Acc. Ins., (4 Ed.), sec. 647; Lawson on Presumptive Ev., p. 287.
A suit based on a benefit certificate issued upon the life of Joseph Bergman by the Knights of The Maccabees of the World, a fraternal beneficial corporation. The certificate was payable on the death of Joseph Bergman to his wife Mary. The beneficiary being non compos mentis the suit was instituted in the name of her Guardian, Marion Bergman.
No controversy arises over the pleadings. The petition is in the usual form. The answer a general denial.
The only issue arising on the trial was whether the insured Joseph Bergman, was dead on the 1st day of June, 1915, at which date the certificate was forfeited for non-payment of dues.
Upon a trial there was a verdict and judgment for plaintiff for the full amount of the certificate. After the customary steps, the defendant has brought the case here for review, assigning error as follows:
First. In overruling the defendant's demurrer to the evidence offered at the close of plaintiff's case and also at the close of the whole case.
Second. In admitting in evidence a letter from the insured received on May 10, 1915, in which he intimated an intention to take his own life.
Third. In admitting in evidence letters of administration issued by the Probate Court on the estate of Joseph Bergman, the letters being offered as evidence of his death.
Fourth. In giving the main instruction requested by the plaintiff.
Fifth. And in refusing instructions requested by the defendant.
The facts developed by the evidence are substantially these:
Joseph Bergman emigrated to this country from Austria some thirty years before the trial. He was a musician by profession, having played the French horn and to some extent the violin. On May 10, 1915, the date of his disappearance, he was about 65 years of age, and for some years prior to that time he had not worked at his profession but occupied the position of treasurer of the Musicians' Mutual Benefit Association, of which he was a member in good standing, and he was also manager and treasurer of the "Aschenbroedel," a social organization of musicians in the City of St. Louis.
Bergman's wife had been in the City Sanitarium for about nine years, and he lived with his three daughters and one son in a house which he owned, but on which there was a mortgage of $ 2500 not due. He also owned some vacant property subject to an unmatured mortgage of $ 700 or $ 800. He was obligated to a friend on his unsecured note for $ 100. He was not being pressed for the payment of any of these debts. It appeared that the interest was due on the mortgages the following June. There was evidence that his relations with his family were always pleasant and agreeable, and his daughter was unable to explain the statement indicating the contrary and contained in a letter received from him after the disappearance.
It was Bergman's custom to leave his home in the morning between 8 and 9 o'clock, go to the club rooms on Pine Street, return about 3 o'clock for his dinner and go back to the club about 4 or 4:30, where he would remain until late at night. He was a quiet man, having little to say. For several days prior to his disappearance he was unusually quiet, and said he was not feeling very well. On Sunday May 9th he followed his usual daily routine. His family last saw him about 4 o'clock that afternoon, when after finishing his dinner he retired to his room for a few minutes and then left the house for the club, saying the usual goodbye to his daughters in the house and when on the street he called his son from his play to bid him goodbye. He took no extra clothing, but carried with him his favorite violin. He owned 18 or 19 violins and 3 or 4 French horns. Just before he left he gave his daughter who was acting as housekeeper, between $ 40 and $ 50, which was a greater amount than he usually gave her.
Bergman evidently failed to go direct to the club rooms, as he did not arrive there until about 7 o'clock. He was seen there that evening by friends who noticed nothing unusual about his demeanor. He performed his usual duties as manager and left there that night about 11:30 carrying his violin. He was...
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