Johnson v. Sovereign Camp Woodmen of World

• Decision Date: 13 May 1912
• Citation: 147 S.W. 510,163 Mo.App. 728
• Parties: LAURA B. JOHNSON, Resondent, v. SOVEREIGN CAMP WOODMEN OF THE WORLD, Appellant
• Court: Kansas Court of Appeals

147 S.W. 510

163 Mo.App. 728

LAURA B. JOHNSON, Resondent, v. SOVEREIGN CAMP WOODMEN OF THE WORLD, Appellant

Court of Appeals of Missouri, Kansas City

May 13, 1912

Appeal from Randolph Circuit Court.--Hon. A. H. Waller, Judge.

AFFIRMED.

Judgment affirmed.

A. H Burnett and Bailey & Hart for appellant.

W. P Cave for respondent.

OPINION

ELLISON, J.

Plaintiff's action is based on a fraternal benefit certificate in her favor, issued by defendant to her husband A. W. Johnson on the 16th of July, 1900. Dues were properly paid by the husband up to the 19th of December, 1902, when he disappeared. Dues were then paid up to the 1st of March, 1904, by the plaintiff and none were paid after that date. The action is based on the theory that Johnson died prior to the 1st of March, 1904, for, from that time, as just stated, no dues were paid. The judgment in the trial court was for the plaintiff.

It being conceded that no dues were paid after the 1st of March, 1904, it devolved on plaintiff to show that Johnson died prior to that time. More than seven years had elapsed from his disappearance until the bringing of this action, and while that period is sufficient to create a presumption of death, it is not a presumption that he died at any particular time during the running of seven years. "If it be important to any one 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, beyond the mere lapse of seven years." [Hancock v. Life Ins. Co., 62 Mo. 26; Lancaster v. Life Ins. Co., 62 Mo. 121; Duff v. Duff, 156 Mo.App. 247; Springmeyer v. Woodmen of the World, 144 Mo.App. 483; Bradley v. Modern Woodmen, 146 Mo.App. 428, 124 S.W. 69.] Formerly the character of evidence necessary to establish death short of the seven years period, was that the person claimed to be dead must have been exposed to some peril, or afflicted with some serious disease. But other character of evidence will now answer the purpose; as that the person was of good habits, comfortably and happily situated in life,--of cheerful temperament, pleasantly and happily associated with friends and family, and other facts incompatible with his desertion and remaining away from family and friends without communicating with them. [Hancock v. Insurance Co., supra; Duff v. Duff, supra; Springmeyer v. Woodmen of the World, supra; Bradley v. Modern Woodmen, supra.] In such way a case may be built up of such convincing strength as to overcome the usual presumption of the continuance of life.

The case as made for plaintiff along the line we have suggested, is that Johnson was born and reared in Randolph county, where his mother and two brothers still live. That he left Randolph county in 1898 and went to Clinton, Missouri, where he resided with his wife and two children, eight and ten years old, and operated a dairy on a rented farm. That he owned a farm in Randolph county, and while both it and the dairy were mortgaged, they were worth much more than the amount of the incumbrances. A while before his disappearance he had bought Christmas presents for the children, and the evening he left he spoke of his arrangements for an enlargement of his barn. He left money in the bank and had not collected his last month's dairy bills. This is a short statement of the conditions the day he disappeared.

On that day, at five o'clock in the evening, he returned to his house from Clinton, something less than two miles away, and after helping about the milking, he put on a clean collar and returned to Clinton; but without taking any clothing or anything else with him. Not having returned at two o'clock in the morning, his wife began making inquiry (presumably by telephone). She heard nothing from him and neither she, nor his mother or brothers, have ever seen or heard from him since. She instituted inquiry and so did the defendant, through its proper officers. Advertisements were put out and cards of inquiry sent, but no response ever came and all search made...