Butler v. Supreme Court I.O.F.

• Decision Date: 05 May 1909
• Citation: 101 P. 481,53 Wash. 118
• Parties: BUTLER v. SUPREME COURT, I. O. F.
• Court: Washington Supreme Court

101 P. 481

53 Wash. 118

BUTLER v. SUPREME COURT, I. O. F.

Supreme Court of Washington

May 5, 1909

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by Tena Butler against the Supreme Court of the Independent Order of Foresters. From a judgment dismissing the action plaintiff appeals. Reversed, with instructions to proceed with the trial of the cause.

See also, 48 Wash. 147, 93 P. 66.

Belden & Losey, for appellant.

Samuel R. Stern, for respondent.

DUNBAR J.

August Schneider, upon whose life the beneficiary certificate herein sued upon was issued, disappeared from his home in the city of Spokane, July 7, 1898. On that date he was last seen by Mrs. Belle Bassett, his sister-in-law, standing at his front gate talking to a stranger. When Mrs. Bassett was passing out of the gate, Mr. Schneider called to her, saying that he was going to the mines to be gone for several days, and asked her to come over and take care of the house, and to sprinkle the lawn while he was gone, and requested her to say to his wife, who was visiting away from home, that he would return home on the following Wednesday. Mrs. Schneider with the children, had been visiting her parents for some time, but was expected home within a few days. Mrs. Bassett testified that she was detained at the house, at the work which she was assigned to do, a little later than usual on that day, and that Mr. Schneider came home, in company with the stranger above indicated, before she had finished her work; that they were standing at the gate talking when she passed out, when the conversation between herself and Mr. Schneider took place. Mrs. Schneider testified that every effort was made to locate her husband, but to no avail. She communicated the fact of his disappearance to his lodge. The lodge took up the search, and a committee was appointed to see if he could be found, but with the same result. The committee caused an account of his strange disappearance, together with a description of the man, to be published in the 'Forester,' a journal conducted for the benefit of the order, and asked any of the brothers reading the same, if one should hear or learn of a person answering Schneider's description, to report the matter to the Spokane lodge. No tidings of him were ever received. Mrs. Schneider continued to pay the dues on her husband's policy until February 28, 1900, when, being as she says satisfied that he was dead, she discontinued the same. Shortly after this date she desired to, and had an opportunity to, sell the real property belonging to herself and Mr. Schneider, but the purchaser was not satisfied with the title, and refused to accept the same. She consulted counsel, and was advised that seven years would have to elapse before she could get a decree of the court adjudging her husband dead, unless she could produce some direct evidence of his death at an earlier date. This being impossible, it was decided that the only way she could obtain a salable title to the land would be to obtain a decree of divorce from Schneider on the ground of desertion, and have the property set aside to her as her separate estate. Under this advice the divorce proceeding was instituted. In due time a decree was granted, decreeing to Mrs. Schneider all the real property that stood in Schneider's name before his disappearance. In 1906, after the expiration of seven years, plaintiff commenced this action to recover upon the policy of insurance issued by the defendant, on the ground of the death of Schneider. The defendant answered, denying generally, and interposing an affirmative defense to the effect that, at the time of August Schneider's death, if he was presumed to be dead, he was not in good standing in the defendant order, his dues not having been paid until the end of the seven years. It is also affirmatively pleaded that the plaintiff was estopped by reason of her having brought her divorce action in April, 1900, and, for the purpose of her action, having regarded August Schneider as alive, she could not come into court in another and different action, and contend that he was in fact dead at the time the former action was instituted. After the pleadings were at issue, and before the trial, the defendant's attorney interposed a motion for judgment, urging as grounds therefor the alleged estoppel above set forth. This motion was denied, trial was had before a jury, and, after the introduction of plaintiff's testimony, defendant's attorney renewed his motion to dismiss on the grounds stated in the affirmative defenses; and, after hearing argument of respective counsel, the court rendered decision, taking the case from the jury, and dismissing same on the grounds of estoppel urged by defendant.

The main contention of the appellant here is that the court erred in refusing to allow the cause to go to the jury and dismissing the action, and in entering the judgment which followed said dismissal. It seems to be well settled that the presumption of death attaches when a party has been absent for seven years without tidings of his existence. There is some conflict in authority as to the time at which death is presumed to occur under such presumption; but the great weight of authority is to the effect that that is a question of fact to be determined by the jury. In reaching a conclusion as to the time of death much must necessarily depend upon the domestic attachment of the party. If it appears that the party had little regard for his family or friends, had no local attachments of any kind, was known to be on bad terms with his family, or neglectful of it, or was in the habit of leaving his home for considerable periods of time without notifying his family or friends of his whereabouts, these circumstances would tend to diminish the presumption of death as the cause of the disappearance. But where the party is known to be sober and industrious, with strong domestic attachments, considerate, kind, and affectionate to his family, and generally regardful of the rights of others, and disappears suddenly from, or leaves, his home and the community in which he lives and where his interests are, without any explanation, these are circumstances so strong that, without more, the jury would be justified in concluding that death was the cause of his disappearance. This seems to be practically the case at bar, as shown by the testimony. It appears that Schneider was a man under middle age; that he had a wife and two children, a boy and a girl; that he was very strongly attached to his family; that no domestic infelicity had ever existed; that he was respected in the community; was in reasonably good circumstances; and that no possible cause could be assigned for his willfully leaving his home under the circumstances which are assigned.

In laying down the rule of evidence Mr. Greenleaf, in his work on Evidence (section 40) says: 'It is not necessary that the party be proved to be absent from the United States. It is sufficient if it appears that he has been absent for seven years from the particular state of his residence without having been heard from. The presumption in such case is that the person is dead. But not that he died at the end of the seven years, nor at any other particular time. The time of the death is to be inferred by the jury from the circumstances.'...