Eylar v. Prudential Ins. Co. of America

• Decision Date: 06 January 1936
• Docket Number: No. 18482.,18482.
• Citation: 89 S.W.2d 150
• Parties: EYLAR v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: Missouri Court of Appeals

89 S.W.2d 150

EYLAR v. PRUDENTIAL INS. CO. OF AMERICA.

No. 18482.

Kansas City Court of Appeals. Missouri.

January 6, 1936.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

Action by Martha A. Eylar, administratrix of the estate of Samuel L. Eylar, against the Prudential Insurance Company of America. Judgment for plaintiff, and defendant appeals.

Judgment reversed, and cause remanded.

William C. Michaels, Albert L. Reeves, Jr., and George L. Gisler, all of Kansas City, Ralph W. Hyatt, of Newark, N. J., and Meservey, Michaels, Blackmar, Newkirk & Eager, of Kansas City, for appellant.

Louis A. Laughlin, of Kansas City, for respondent.

CAMPBELL, Commissioner.

Action upon a policy of industrial life insurance issued by the defendant to Samuel L. Eylar on March 6, 1899. The insured was born August 2, 1897, and thereafter continued to live with his parents in Kansas City, Mo., until November 28, 1913, at which time because of a misunderstanding with his father he left his home, never to return. In December, 1913, the insured, under the name of Jack S. Iyler, joined the United States Army at Jefferson Barracks. Insured's mother, under the name of Mrs. Martha Iyler, signed the consent to his enlistment, and stated therein that she was the "only surviving parent." Neither insured nor his mother had theretofore spelled their name "Iyler." The insured was received into the army and moved with his comrades to California, from which place, under date of March 27, 1914, he wrote a letter to his mother. The letter indicated that he loved his mother. Thereafter, he was moved to Camp Nogales, Ariz. From the latter place in July, 1914, he again wrote to his mother. He did not thereafter communicate with her until on June 2, 1917, when he mailed a postal card in Chicago, Ill., addressed to her, on which was written, "All right mother." That was the last communication to his mother. While in Camp Nogales the insured was convicted on two charges of absence without leave, sentenced to confinement in the guardhouse. The imprisonment for the second offense ended July 8, 1916. Thereafter, he was tried by a general court martial upon a charge of larceny, convicted and sentenced to confinement for a period of four months. On December 3, 1916, he escaped from the place of confinement. He was not thereafter, as shown by the record of the army, under military control. The insured's mother, in effort to locate her son, made two trips to Leavenworth, Kan., one of which was before and one after she received the postal card. She also advertised in a San Francisco paper.

The probate court of Jackson county, Mo., on June 6, 1932, issued to Martha A. Eylar, mother of insured, letters of administration upon the estate of Samuel L. Eylar. Thereafter, said administratrix brought this suit upon the theory that the insured was presumed to be dead on June 2, 1924. She obtained a judgment which included penalties and attorneys' fees. The defendant has appealed.

The defendant contends that the evidence was insufficient to establish a presumption of death under the statute, now section 1709, R.S.Mo.1929 (Mo.St.Ann. § 1709, p. 3986), or under the common-law rule. And the defendant also contends that plaintiff, in the trial court, relied upon the statutory presumption, and for that reason may not on appeal invoke the common-law presumption. The plaintiff says that she relied upon both the statute and common-law presumption. We shall not determine that question for the reason that we have arrived at the conclusion that the evidence does not establish a presumption of death either under the statute or under the common law.

In the case of Heath v. Salisbury Home Telephone Co. (Mo.App.) 27 S.W. (2d) 31, 36, the court, in speaking of the evidence necessary to make a case under the statute and under the common law, said:

"Under the common law rule it is necessary to show that the missing party had not been heard from by his relatives and friends for seven years, but under the statute mere proof that one has left his residence in this state and gone to another and has not returned to this state for seven successive years is sufficient to raise the presumption, and no showing on the question as to whether the missing party has been heard from by relatives or friends for the seven year period is required to be made. Sovereign Camp, Woodmen of the World, v. Ruedrich, supra [Tex.Civ. App.] loc.cit. 172 of 158 S.W. [170]; Duff v. Duff, supra, loc.cit. 255 of 156 Mo. App. [247], 137 S.W. 909; Winter v. Sup. Lodge K. of P., supra, loc.cit. 15 of 96 Mo.App. [1], 69 S.W. 662. Under the common law it was unnecessary to show that the missing party had left the state as is required by the statute. * * *

"It seems apparent to us that plaintiff failed to make out a case under the common law rule and we think that this applies as well to a case under the statute. Under the provisions of the statute it was necessary that plaintiff show that Prine had not returned to the State of Missouri for the seven successive years that she relied upon in this case. It would be difficult to imagine a case in which this matter could be proved by direct testimony; in other words, plaintiff was under the obligation to perform the difficult task of proving a negative. But this did not relieve her of the necessity of proving it. It is no proof that one has been absent from this state for a period of seven years to show that he was not seen or heard of at a given place in this state, not at his residence or domicile or by his relatives and friends for a period of time...