Bradley v. Modern Woodmen of America
| Decision Date | 04 January 1910 |
| Parties | MARTHA E. BRADLEY, Respondent, v. MODERN WOODMEN OF AMERICA, Appellant |
| Court | Missouri Court of Appeals |
[Copyrighted Material Omitted]
Appeal from Knox Circuit Court.--Hon. Chas. D. Stewart, Judge.
REVERSED AND REMANDED.
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, by which it agreed to pay plaintiff the sum of one thousand dollars 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, Missouri. 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 fifty or sixty dollars 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 first 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 seventy 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 seventy 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 thirty-six years old, had been married eighteen years and had three 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 Mill's 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 these absences his family had heard from him regularly; had talked of enlisting in the army; took his money, sixty or seventy dollars, with him and the wagon and team, and horse feed. After he left, his wife paid his dues to 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 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 about the time he disappeared, tried to buy, but could not get, any fish in Canton, and "crossed the river." Defendant endeavored to prove by witnesses that rumors were afloat in the community where Mills lived about the cause of his disappearance, and excepted to the exclusion of the testimony. Defendant also makes a point about the efforts put forth to find a trace of him having been inadequate to base a presumption of death on. His wife and many of his relatives sought information from all probable sources, and he had been advertised for in a journal of the defendant society which circulated throughout the United States in more than a thousand lodges; the secretary of his lodge had written fifty or more letters of inquiry about him, and various neighbors and relatives testified they had never seen nor heard of him after his disappearance.
The court refused to direct a verdict for defendant, and ruled as follows on the other requests:
At the request of plaintiff the court gave the following instructions:
1. "The court instructs the jury that all questions are eliminated from this case, except the question of date of his death, of the said Abe Mills. If, therefore, you find from the greater weight of the evidence that it is more probable that he died prior to February, 1901, than after that date, then you will find for the plaintiff.
2.
Defendant objected to the action of the court in giving said instructions; the objection was overruled and exception saved.
At the request of defendant the court instructed as follows:
1. "The court instructs the jury, that although the sudden disappearance and unexplained absence from his home in this State without being heard from, of said Abe Mills, for the period of seven years, raised the legal presumption of his death, yet that presumption cannot arise until the end of the seven-year period from the date of his departure, and that there is also a presumption of continued life in this case which the plaintiff must overcome with the presumption of death of said Mills, prior to February 2, 1901, and unless the plaintiff has shown by the greater weight of the evidence facts and circumstances surrounding the disappearance of said Abe Mills, which make it more probable that he died prior to said February 2, 1901, than that he did not die prior to said last named date, then your verdict must be for defendant.
2. "The court instructs the jury that before you can find for the plaintiff in this case, you must find and believe from the greater weight of the evidence, that said Mills died before the second day of February, 1901, and unless you so find, your verdict...
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