Bonslett v. New York Life Ins. Co.

• Decision Date: 01 December 1916
• Docket Number: No. 17586.,17586.
• Parties: BONSLETT v. NEW YORK LIFE INS. CO.
• Court: Missouri Supreme Court

190 S.W. 870

BONSLETT v. NEW YORK LIFE INS. CO.

No. 17586.

Supreme Court of Missouri, Division No. 1.

December 1, 1916.

Motion for Rehearing Overruled December 20, 1916.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by Edna K. Bonslett against the New York Life Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Judson, Green & Henry, of St. Louis (James H. McIntosh, of New York City, of counsel), for appellant. Frederick H. Bacon, of St. Louis, for respondent.

BLAIR, J.

This is an appeal from a judgment for respondent on two $10,000 policies of insurance on the life of George A. Kimmel. The policies were payable in $500 installments, and each provided that the first installment under it was to be paid immediately upon the receipt and approval by appellant of proofs of Kimmel's death, and that the subsequent installments should be paid annually thereafter.

July 31, 1898, George A. Kimmel disappeared. At the trial the principal question of fact was whether he was dead. Appellant produced a witness who testified he was George A. Kimmel. Upon this question of identity the evidence need not be detailed. It is conflicting. Several of the nearest relatives of Kimmel, including his mother, and some of his former friends, acquaintances, and business associates testified the witness was not Kimmel. Several relatives and former friends and acquaintances of Kimmel supported the witness' claim. The witness displayed a knowledge of things it seems difficult to understand how he could have known unless he was George A. Kimmel, and was ignorant of things it seems George A. Kimmel must have known. Photographs of Kimmel and the witness bear some resemblance and disclose some striking differences. With respect to the circumstances surrounding Kimmel's disappearance, there is evidence both for and against respondent's position that he was a strong, healthy, young man, successful and prosperous in his business and in good financial condition, and that there was apparently no reason for his leaving his business and property. His relations with his mother and sister and other relatives were affectionate, and those with his business associates were cordial and pleasant.

After his disappearance, the Pinkerton Detective Agency made a most thorough search for him throughout the whole of the United States and many foreign countries. Circulars offering $500 reward and containing a description and picture of Kimmel were scattered broadcast, being sent to the chiefs of police and marshals of every town in the Union having a postal money order office and to many others. No results of any kind were obtained. The circulars mentioned stated the search was being prosecuted by friends and relatives, and that Kimmel was not wanted for any offense against the law. In August, 1900, proofs of death were submitted to appellant in which the fact of Kimmel's disappearance was stated as well as the circumstances of the trip to Winfield, Topeka, and Kansas City which he undertook the day before he disappeared from Kansas City. Numerous affidavits accompanied these proofs, and the facts stated therein made out the facts surrounding the disappearance in close conformity with respondent's contention upon that phase of the case at the trial. Letters from the company to respondent tend to show the matter was under consideration until March, 1904, when appellant refused to pay unless bond was given. This action was commenced in less than five years thereafter.

I. The conflict of evidence on the question of the identity of appellant's principal witness made that question one for the jury. This is also true of the question whether the circumstances surrounding Kimmel's disappearance were such as to raise a presumption of death on the lapse of seven years.

II. While, under the rule in this state (Hancock, Adm'r, v. Am. L. Ins. Co., 62 Mo. 26), the presumption of death from disappearance and absence is not a presumption of death at any particular point of time within the seven years whose lapse is requisite to raise the presumption, yet there was evidence tending to prove circumstances justifying a finding that Kimmel died at or reasonably near the time of his disappearance. In this respect the evidence tends to prove facts very like those in Hancock, Adm'r, v. Am. L. Ins. Co., supra.

III. Proofs of death were submitted August 15, 1900, and were retained by appellant, and negotiations between appellant and respondent continued until March, 1904, when appellant refused to pay unless a bond was given. This action was brought less than five years after such refusal, but more than ten years after Kimmel's disappearance and more than ten years after October 31, 1898, the date on which the jury found Kimmel died, and more than eight years after the proofs of death were submitted. There is no evidence appellant objected to the form or substance of the proofs of death. It did refuse to concede Kimmel's death. This was prior to the lapse of the seven years necessary to raise a presumption of death.

Appellant contends the cause of action is one under the laws of Kansas and was barred thereby in five years, and that under our statute (section 1895, R. S. 1909) the same period barred the action in this state. Respondent contends our statute does not apply to this action, since, she insists, merely the action was barred by the Kansas statute, and the cause of action was not barred. We shall not discuss this question. Let it be assumed the Kansas five-year statute applies and that the case falls within section 1895, R. S. 1909. The question then presented is: When did the right of action accrue?

Each of the policies sued on is for $10,000, payable in 20 annual installments of $500 each, and each policy makes express provision for "the first installment to be paid immediately upon receipt and approval of proofs of the death of George A. Kimmel * * * and the subsequent installments to be paid annually thereafter."

Respondent takes the position that, under the terms of the policies, the right to sue did not accrue until the company, in March 1904, finally refused to pay, and that the limitation did not begin to run until that time. The statute did not begin to run until the right of action accrued, i. e., until the first installments under the policies became due and payable. The policies themselves provided this should not happen until proofs of death were submitted and approved.

Appellant contends, despite the policy provision, the statute commenced to run at the time of Kimmel's death, which the jury found occurred October 31, 1898; that the action was commenced in 1904, and was therefore barred. Three of the cases cited (Glass v. Walker, 66 Mo. 32; Bradley v. Insurance Co., 28 Mo. App. 7; Grigsby v. Insurance Co., 40 Mo. App. 276) arose under provisions in fire insurance policies limiting the time within which suit must be brought. This was before the statute invalidated such agreements and the court enforced the contract limitation. In each policy it was provided suit should not be brought within sixty days after proof of loss, but within six months after the loss. The court held the provision for sixty days' immunity from suit after proof of loss did not extend the time, and the policies meant that suit must be brought within six months from the date of loss, and not six months from the ascertainment of loss by the company. These decisions dealt with policies making specific provision as to the time after which actions thereon must be brought. The policy in the instant case contains no like provision which has any validity, but does make provision as to the time before which an action cannot be brought.

In Kauz v. Redmen, 13 Mo. App. 341, the insured disappeared July 7, 1874. No further payments on his policy were made, and Kauz was suspended in 1875. In 1881 his widow applied for payment of the policy. It was held the statute began to run from the date of Kauz's death; that if he died in 1874, when he disappeared, the statute barred the action; and that if he did not die until in 1881, at the end of the lapse of seven years after his disappearance, the failure to keep up payments defeated plaintiff. In the instant case, by the plain words of the policy, the statute could not have commenced to run upon the instant of Kimmel's death; nothing became due upon the happening of that event alone; proof of death and something more was necessary; further, payments were made and accepted by appellant until and including that due in 1903, long after the date the jury found Kimmel died and after proofs of loss were made. The Kauz Case is not in point.

In Harrison v. Masonic Mut. Ben. Soc., 59 Kan. 29, 51 Pac. 893, plaintiff alleged and proved the insured died in 1883. No payments were made after that time. Proof of death was not made until 1894. It was held it was incumbent upon plaintiff to make proof of death in a reasonable time after the event, and that even in a disappearance case such reasonable time could not exceed the period of the statute of limitation. That decision cannot aid us in this case. In that case the statute began, as in the Kauz Case, to run upon the death of the insured. In this it could not begin to do so until an installment fell due, and the time it did fall due is the real question before us.

In Amy v. Watertown, 130 U. S. 320, 9 Sup. Ct. 537, 32 L. Ed. 953, the question discussed was whether certain things suspended the running of the statute of limitation. That question is not involved in the case at bar. That case dealt with the exceptional circumstances which would prevent the running of the statute despite the fact a right of action had accrued.

Appellant cites several cases holding that, where the right to sue depends upon some act of plaintiff, plaintiff cannot postpone the running of the statute by delaying the act to be performed by him, and the statute runs despite...