Hancock v. American Life Ins. Co.

• Decision Date: 31 January 1876
• Citation: 62 Mo. 26
• Parties: DANIEL J. HANCOCK, ADM'R OF HENRY C. MORRIS, Respondent, v. THE AMERICAN LIFE INSURANCE COMPANY, Appellant.
• Court: Missouri Supreme Court

62 Mo. 26

DANIEL J. HANCOCK, ADM'R OF HENRY C. MORRIS, Respondent,

v.THE AMERICAN LIFE INSURANCE COMPANY, Appellant.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

Glover & Shepley, with Martin & Lackland, for Appellant.

I. There is no presumption in law that Henry C. Morris died prior to June 8th, 1861, having been last seen March 1, 1861. (2 Greenl. Ev. [Redf. Ed.] § 278.)

II. The burden of proving that he died before June 8, 1861, was upon the plaintiff. There is no evidence in the

record of his death prior to that time. ( In re Bentham's Trust, L. R. 4 Eq., 415; Newman vs. Jenkins, 10 Pick., 519; Spencer vs. Roper, 13 Ired., 333; Smith vs. Knowlton, 11 N. H., 197; Robinson vs. Sweet, 26 Me., 378.)

III. There is positive evidence of his having been seen since June 8, 1861, and of his having written a letter dated in September, 1861.

IV. The court ought not to have rendered any judgment on the verdict. The petition contains no cause of action. The policy says no money is payable on it till “after satisfactory proof of death.” The petition says no such proof of death was ever made.

The averment in the petition, that due proof was furnished, does not help the case. The proof would not do unless it was according to the policy. (State vs. Marshall, 36 Mo., 401; State vs. Matson, 38 Mo., 489; Hopp vs. Stone, 39 Mo., 378; Mortland vs. Halton, 44 Mo., 64.)

Geo. P. Strong, for Respondent.

I. Absence from his usual place of residence for seven years, without being heard from, is presumptive evidence that the party is dead. (1 Phil. Ev., [4th Am. Ed.] 640-41, and notes 184, 5; Id., 264, notes; Id., 599; Bliss Life Ins., [2d Ed.] 326, 327.)

II. The general belief of a family, that a missing member is dead, is admissible in evidence, as in many cases it is not only the best but the only evidence which can be supposed of his death. (Jackson vs. Etz, 5 Cow., 319; Doe vs. Griffin, 15 East., 393; Jackson vs. Boneham 15 Johns., 226; 1 Greenl. Ev. [2d Ed.], §§ 201, 574.)

III. It was for the jury to determine from all the circumstances of the case, at what time Henry C. Morris died. The presumption of death arising from seven years absence does not fix the date of death at any particular point of time during the running of the seven years. (Bliss Ins., [2d Ed.] 326-7; Best Pres. Ev., 45 Law Lib., 171; Mathews Presum. Ev., 291; 1 Taylor Ev., pp. 127, 128, § 125; Stonvenal vs. Stephens, 2 Daly, [N. Y.] 319; Knight vs. Nepean, 5 Barn. & Ad., 86; S. C., 2 M. & W., 894; Burr vs. Linn, 4 Whart., 171; Smith vs. Knowlton, 11 N. H., 197; Whiting vs. Nich olls, 46 Ill., 241; Ang. Fire & Life Ins., 379, § 351; Tisdale vs. Conn. Mut. Life Ins. Co., 26 Iowa, 171; S. C., 28 Iowa, 12; White vs. Mann, 26 Me., 370.)

WAGNER, Judge, delivered the opinion of the court.

Plaintiff in his petition alleged that he was administrator of Henry C. Morris, deceased, and that defendant, by its policy dated June 8th, 1860, in consideration of -- dollars, paid and secured to be paid by deceased, assured his life in the sum of $5000 for the term of his natural life, and promised and agreed well and truly to pay, or cause to be paid, said sum of money, to the heirs, executors, administrators and assigns of the said Morris, within sixty days after due notice and satisfactory proof of his death; that said Morris died suddenly in New York city on or about March 1st, 1861, and has never been heard of since. There was a further averment, that after due inquiry and search, the heirs and relatives of Morris had been unable to ascertain the particulars of his death, and unable to give to the company such proof and notice of his death as was mentioned and specified in the conditions or directions indorsed on the policy; that the heirs and legal representatives of the deceased Morris did, at divers times, give due notice and furnish proof of his death; and that more than seven years had elapsed since any of the family, or friends, or relatives, or acquaintances of Morris had heard from or of him.

The answer denied all the allegations of the petition, except that a policy was made insuring the life of Morris for $5000. It set up as new matter, that the policy contained the following provision: “that in case said Henry C. Morris should not pay the premiums herein before specified, on or before the days specified and appointed for the payment of the same, or shall fail to pay the interest on said premium note when due, then said policy shall be void.” The answer then alleged that the policy was issued in consideration of the annual premium of $162.50, payable June 8th, in each year, and that said premium falling due June 8th, 1861, was never paid, and the policy became void.

The reply averred that Morris died before June 8th, 1861, and that before the premium of that date became due, he had departed this life.

A question was made here whether the notice of death was given in time, or, in fact, whether there was any sufficient notice given at all. But from the view that we have taken of the case, that question becomes unimportant and immaterial. The main question is, when did Henry C. Morris die? Unless his death occurred prior to June 8th, 1861, there can be no recovery, as the premium due at that date was not paid, and if he was then living, its non-payment worked a forfeiture of the policy. Before considering the instructions given by the court, it will be necessary to advert briefly to the evidence.

It appears that Henry C. Morris was a single man; that for many years previous to his alleged death, he had been in the habit of spending his time in the south, engaged in mining and speculations; that he left the south and was for some time visiting his friends and relations in Quincy, Illinois, and from there went east, and during the winter of 1860-61, he boarded with a Dr. Scott, in New York City. At Albany, he became interested in a patent stove, which he designed introducing in the south, and had a pattern made and shipped there for him. The rebellion at that time was about to commence, and he was open and outspoken in his sympathies with the southern people, and declared his purpose to go south and take up arms in its defense. His health seems to have not been very good, though the witnesses state that he was able to attend to business. About the 1st of March, 1861, he left his room at Dr. Scott's with the intention of going to Brooklyn and did not return. His clothes and valise were left in his room, but they were of little value.

His friends and relatives testify that they never saw or heard of him any more. Dr. Scott testifies that he received a letter from him in the September following, but there was testimony going to show that he was mistaken, and it is evident that the jury must have thought so. It appears also that Morris was indebted to Dr. Scott, and also to a lady for borrowed money; that previously he was in the habit of writing to his friends and relatives, but after his disappearance about the first of March, they never received any letters from him.

The foregoing is the substance of the testimony. For the plaintiff, the court instructed the jury that, “if prior to the commencement of this suit Henry C. Morris had disappeared and had not been heard from by his friends and acquaintances for a term of seven years, then the law presumes that he is dead, and the jury will determine from all the evidence in the case at what time he died; and if the jury believe from the evidence that he died before June 8th, 1861, and that defendant was notified of his death, and furnished with such proof thereof, as the circumstances of the case would permit, and, also, that plaintiff has been appointed administrator of said Henry C. Morris' estate, then the plaintiff is entitled to recover in this action.”

At the instance of the defendant, the court gave an instruction that “there is no evidence before the jury that the premium due June 8th, 1861, has ever been paid, therefore, if Henry C. Morris was living at that date, the policy became forfeited, and the plaintiff cannot recover in this case.” And there was a refusal to declare that, “the plaintiff having not produced any evidence that Henry C. Morris died prior to June 8th, 1861, is not entitled to recover.”

There was a verdict and judgment for plaintiff, and the defendant has prosecuted an appeal.

In relation to the presumption of death arising from mere absence, the rule at common law is well established.

Where a party has been absent seven years, without having been heard of, the only presumption then arising is, that he is dead; there is none as to the time of his death, as to whether he died at the beginning or at the end of any particular period during those seven years. If it be important to anyone to establish the precise time of such person's death, he must do so by evidence of some sort, to be laid before the jury for that purpose, beyond the mere lapse of seven years. (Best. Pres. Ev., § 140; Knight vs. Nepeau, 5 Barn & Ad., 86; affirmed in Exch., 2 Mees. & Wel., 894; Spencer vs. Roper, 13 Ind., 333; In re Benham's trust L. R. 4 Eq., 415; McCartee vs. Campbell, 1 Barb., ch. 456.)

In Burr vs. Sim, (4 Whart., 150) Mr. Justice Gibson denied the common law rule as generally laid down, and stated the true doctrine to be that, “the presumption of death, as a limitation of the presumption of life, must be taken to run exclusively from the termination of the prescribed period, so that the person must be taken to have then been dead, and not before.” Whatever may be the true rule on this subject, all the authorities agree that when a party has been absent seven years since any intelligence has been received of him, he is in contemplation of...