Bradley v. Modern Woodmen of America

• Decision Date: 04 January 1910
• Citation: 124 S.W. 69,146 Mo. App. 428
• Parties: BRADLEY v. MODERN WOODMEN OF AMERICA.
• Court: Missouri Court of Appeals

124 S.W. 69

146 Mo. App. 428

BRADLEY v. MODERN WOODMEN OF AMERICA.

St. Louis Court of Appeals. Missouri.

January 4, 1910.

1. TRIAL (§ 191) — INSTRUCTIONS — ASSUMPTION OF FACTS.

In an action on a death benefit certificate, an instruction which assumes the death of insured is erroneous where there is no evidence of his actual death, and the presumption of death from seven years' absence is not mentioned.

2. DEATH (§ 2) — EVIDENCE OF DEATH — PRESUMPTIONS FROM ABSENCE.

The statutory presumption of death from seven years' absence from the state (Rev. St. 1899, § 3144 [Ann. St. 1906, p. 1786]) does not arise until it is conclusively shown that decedent left the state.

3. DEATH (§ 2) — EVIDENCE — PRESUMPTIONS — DILIGENCE.

Evidence that the wife and relatives of insured sought information from all possible sources after his disappearance, that he was advertised for in his lodge journal, which circulated in more than 1,000 lodges throughout the country, and the secretary of his lodge wrote more than 50 letters of inquiry, shows the exercise of sufficient diligence to discover what had become of him, to give rise to the presumption of death after the lapse of seven years.

4. DEATH (§ 2) — EVIDENCE — PRESUMPTIONS FROM ABSENCE — REBUTTING EVIDENCE.

The presumption of death from seven years' absence of a person may be rebutted by evidence of his unhappy domestic relations.

5. DEATH (§ 2) — EVIDENCE — PRESUMPTIONS FROM ABSENCE — TIME OF DEATH.

There is no presumption that a person who has been absent for more than seven years died at any particular date, or before the lapse of his life insurance for nonpayment of assessments two or three months after his disappearance.

6. DEATH (§ 2) — EVIDENCE — PRESUMPTIONS FROM ABSENCE.

The presumption of death from seven years' absence does not depend on the absentee's exposure to some peril which would be apt to shorten his life.

7. DEATH (§ 2) — PRESUMPTION FROM ABSENCE — TIME OF DEATH — BURDEN OF PROOF.

Where it appears in an action on a life policy that insured disappeared and has not been heard from for more than seven years, the burden is on plaintiff to show that death occurred before the lapse of the policy for nonpayment of assessments.

8. DEATH (§ 2) — PRESUMPTION FROM ABSENCE — TIME OF DEATH.

In determining whether death occurred before the lapse of the policy, the jury should take into consideration insured's condition in life, character, habits, and domestic relations.

9. EVIDENCE (§ 269) — PRESUMPTION FROM ABSENCE — DECLARATIONS OF ABSENTEE.

In such action, evidence of declarations by insured when he left home, of the purpose of his trip, and when he would return, was admissible as bearing on the presumption of death from absence.

10. EVIDENCE (§ 322) — HEARSAY — RUMORS.

Evidence of rumors in the vicinity of the home of a person who has not been heard from for more than seven years, as to the cause of his leaving home, is hearsay, and inadmissible, as bearing on the presumption of death from absence.

11. INSURANCE (§ 815) — ACTION ON BENEFIT CERTIFICATE — PETITION.

Where the action on a benefit certificate is based on the presumption of insured's death from his absence for more than seven years, the petition should allege that death occurred before date of the lapse of the policy.

Appeal from Circuit Court, Knox County; Chas. D. Stewart, Judge.

Action by Martha E. Bradley against the Modern Woodmen of America. Plaintiff had judgment, and defendant appeals. Reversed.

Benj. D. Smith, Chas. K. Hart, and F. H. McCullough, for appellant. E. R. McKee and F. E. Robinson, for respondent.

GOODE, J.

Plaintiff, who is the wife of a man named Bradley, was formerly the wife of Abe Mills. She sues on a benefit certificate issued June 27, 1899, to Mills by defendant, and agreeing to pay plaintiff the sum of $1,000 on the death of said Mills, if he then was in good standing with all dues and assessments discharged on his certificate. Mills' family consisted of his wife and several children, with whom he lived on and prior to October 27, 1900, near Locust Hill, in Knox county, Mo. He was a farmer, but did odd work for other persons at times. His circumstances were rather poor, not much property having been accumulated by him, and on the date last mentioned he owned a wagon and team and $50 or $60 in money; also some other property of trivial value. On that day he left his home with his wagon and team, professedly to go to Canton, in Lewis county, to purchase a load of fish which he intended to bring home and sell to persons in the vicinity. From the time he left home, or at least after he reached Canton, no tidings of him were ever received, as far as the evidence shows. After waiting until more than seven years after his disappearance, and on April 29, 1908, the petition in the present action was filed by plaintiff to recover the indemnity the benefit certificate promised she should be paid at her former husband's death in good standing. The petition speaks in several places of the death of Mills, but nowhere formally avers he had died or was dead, or the time and place of his death. It alleges the facts regarding his departure from home to go to Canton for the purpose stated, says no trace or information pertaining to him had since been obtained by his family, acquaintances or friends, though diligent search and inquiry had been made through all sources and by all possible means; says further his family relations and surroundings were pleasant at the time he left home; he had no business complications to oppress or annoy him, and there was no cause why he should not return home or give information as to his whereabouts if he continued to live. In its answer defendant admitted issuing the benefit certificate, and denied the other averments of the petition; then alleged Mills had become suspended on February 2, 1901, and all rights under the certificate forfeited, for the nonpayment of a benefit assessment duly levied and payable by him on or before the 1st day of February, 1901; alleged Mills had abandoned his membership in the society on February 1, 1901, and never, after that date, had attempted to be reinstated in the manner required by the by-laws; that during the seven years since his disappearance, nearly 70 assessments had been levied against the members of the society, and he had not paid, tendered, or in any manner attempted to pay any of said assessments, or any dues which would have accrued on his certificate during the seven years, had he continued a member. In the replication plaintiff admitted the assessment for the year 1901 had been levied by the society and had not been paid by Mills or any one for him, but denied the benefit certificate had become null or forfeited on account of nonpayment of the assessment or for any other reason, inasmuch as the insured had died prior to the date — February 1, 1901 — when the assessment fell due. Many of the facts of the case were stipulated by the parties. It was agreed defendant is a fraternal beneficial society organized under the laws of Illinois and now authorized to do business in the state of Missouri; what the by-laws of the company are, and that one of them forfeited, ipso facto, and rendered null and void a certificate if an assessment was not paid when due; that on December, 1900, assessment No. 1, for the year 1901, for the benefit fund of defendant, was levied on all members, including Abe Mills; regular notice of the levy was furnished to him (i. e., constructive notice as provided in the by-laws), and neither said Mills, nor any one for him, had paid said assessment; that more than 70 assessments had been levied by the board of directors against beneficial members of the order during the seven years succeeding October 27, 1901, and neither Mills, nor any one for him, had tendered or offered to pay any of said assessments after January, 1901, or to pay any dues as required by the by-laws of defendant; that Mills had paid all dues and assessments levied against him subsequent to the date of the benefit certificate and until January 1, 1901. Plaintiff, in March, 1908, furnished proof to defendant of his death.

Defendant objected to evidence being received on the ground the petition stated no case, did not say or state facts to advise defendant of the date of Mills' death, and did not show whether plaintiff was proceeding under the statute or under the common-law presumption in respect of his death. Oral testimony was introduced tending to prove the disappearance of Mills as stated; that he was then 36 years old, had been married 18 years, and had 3 young children; he was a farmer, but owned no farm, had not thrived financially, was working at what he could get to do, and had been accustomed to go to Canton to get fish to peddle; had no trouble with his family, kissed his wife good-bye on leaving her, and said he would be back in three or four days if it did not rain, and, if it did, would be gone longer; that Mills' character was good; he supported his family and was affectionate with them, had made several other trips from home, one to Oklahoma and one to Dakota, but during those absences his family had heard from him regularly; had talked of enlisting in the army; took his money — $60 or $70 — with him, and the wagon and team, and horse feed. After he left, his wife paid his dues in defendant order for November and December. There is some testimony that in the spring prior to his disappearance, Mills had had a disagreement with his wife, and had declared he could not stand it at home any longer; that his wife did not keep the house clean and make the children mind, but would allow them to tear things up and do as they pleased; that these statements were made in his wife's presence, and she said she "wished he had a woman." His relatives had endeavored to find him or learn of his whereabouts and had failed. One witness testified to a hearsay statement that a man of Mills' description...