Lancaster v. Washington Life Ins. Co. of New York City

• Decision Date: 31 January 1876
• Parties: RICHARD D. LANCASTER. ADM'R OF ESTATE OF THOMAS H. TOUHEY, Respondent, v. THE WASHINGTON LIFE INSURANCE COMPANY OF NEW YORK CITY, Appellant.
• Court: Missouri Supreme Court

62 Mo. 121

RICHARD D. LANCASTER. ADM'R OF ESTATE OF THOMAS H. TOUHEY, Respondent,

v.THE WASHINGTON LIFE INSURANCE COMPANY OF NEW YORK CITY, Appellant.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

J. E. Ralston, for Appellant, cited Bliss Life Ins., 583; 3 McLean, 494; 46 Ill., 230; 26 Me., 370; 1 & note 6, T. R., 766; 11 N. H., 191; 18 Johns., 143; 4 Whart., 150, 171; 3 How. Pr., 218; 8 Cal., 62; 5 Hurlst. & Norm., 211; 17 C. B. 372; Stark. Ev., 818; 1 Greenl. Ev., § 41; 2 Esp., 364; 3 Esp., 63; 1 Russ., 301; 1 Phil. Ev. Cow. & H. notes 343-4; 2 Id., 76-7; 11 State Tr., 261.

A. J. P. Garesche, for Respondent, cited 36 Mo., 13; 56 Mo., 65; Bliss Life Ins., 2d. Ed., pp. 326-7, §§ 204-5; Id., p. 328; 45 Mo., 87; 47 Mo., 443.

HOUGH, Judge, delivered the opinion of the court.

This was an action by the plaintiff as administrator of the estate of Thomas H. Touhey, who, it was alleged, died by drowning on the 20th day of September, 1869, to recover from the defendant the sum of twenty-five hundred dollars and interest, on a policy of insurance issued by the defendant on the life of said Touhey, on the 12th day of July, 1869. The plaintiff averred full compliance with all the conditions of said policy by the intestate, and alleged that due notice and proof of death were furnished to the defendant on the 19th day of October, 1870.

It was averred in the petition that the plaintiff was duly appointed by the probate court of the county of St. Louis, administrator of the estate of Thomas H. Touhey, deceased. This allegation was thus denied: “Defendant for answer to the petition of plaintiff says, that it has no knowledge or information sufficient to form a belief as to whether the plaintiff was legally appointed administrator of the estate of Thomas H. Touhey.”

The answer admitted the insurance of Touhey's life at the time, and for the amount stated, but denied the death of Touhey; denied that he fulfilled the conditions of his policy, and denied the notice and proof of death as alleged by plaintiff.

It appeared from the testimony introduced by the plaintiff, that about the middle of September, 1869, Thomas H. Touhey, the assured, took passage at Chicago for Detroit, on the steamer Badger State, a lake propeller, plying between Chicago and Buffalo. He appeared to be sick and despondent when he went on board, and he remained in his stateroom during the first two days of the voyage and took his meals there. He was spoken of by some of the employees of the boat who observed him, as “the sick man,” and he wore a large overcoat. Sometime, during the night in which the steamer reached Detroit, Touhey disappeared and has not since been heard from. The watchman who was on duty the night Touhey disappeared, saw him last just before supper, and when the vessel was near the foot of lake Huron, and before it had entered the St. Clair river. The steward of the boat last saw him about the same time and talked with him in the wash room; he left there, he said, to go to the water closet, which was on the main deck. The engineer, during the same evening and before the boat entered the St. Clair river, while looking at the starboard aft gangway in the main deck, saw the insured standing aft of him, about twelve or fifteen feet, leaning his head and shoulders out of a “shutter,” a small opening which looked out upon the water, and which was in the bulwarks running up from the main deck to the promenade deck. He observed him there some three or four minutes, and never saw him afterwards. It does not appear whether the engineer saw him leave this opening, or whether, when he ceased to observe him, he was still at the opening. The master of the vessel last saw him on the evening of his disappearance, soon after supper, aft on the promenade deck. This was about seven or half past seven o'clock. Whether this was after he was seen by the engineer, does not appear. About half past ten o'clock the same night, the boat landed at a wood dock on the Canada side of the St. Clair river, just below Sarnia, and remained there about one hour. The master was on deck during the whole of this time and did not see him get off and testified that he could not have gone ashore there without having been seen by him. The vessel reached Detroit about four o'clock in the morning, and Touhey was first missed from the vessel when the master, just before reaching Detroit, sent the steward to call up the passengers, who were destined for that place, so that they might be ready to go on shore, when the boat landed. The steward having rapped several times at the door of the room occupied by Touhey, without receiving any answer, and hearing no one stirring within, tried the door, and finding it unlocked, opened it; seeing no one there, he reported the fact to the master. The steward, by the direction of the master, then searched the vessel, but could not find Touhey. The master himself went immediately to Touhey's stateroom and found an ordinary black valise on the floor, containing letters, business cards, some vials, one shirt and a collar, and several photographs of the insured. There was a coat and vest hanging on a hook in the room, and an umbrella standing in the corner. He then looked about the vessel for Touhey, but was unable to find him, and some five or ten minutes after landing at Detroit, he went on shore and stood at the gangway, but did not see Touhey go ashore, nor did he hear anything of him. Inquiry was made at Detroit, but no information could be had that he left the vessel at that place. The general opinion of those on board the vessel was, that he had either fallen overboard accidently, or had jumped overboard and was lost. The night on which he disappeared, was a calm one. The vessel encountered neither storm nor accident. Touhey was at the time of his disappearance unmarried, without family, about forty years of age, and the editor of the St. Louis Journal of Commerce, or St. Louis Commercial Bulletin. The letters of administration were not introduced in evidence. At the close of the plaintiff's case, defendant asked certain instructions which were in the nature of a demurrer to the evidence, which were refused by the court and the defendant excepted. It will not be necessary to review the action of the court on these instructions, as the same questions raised by them, except as to proof of loss, of which there was some evidence, arise on the instructions given and refused by the court after the testimony was all in. The only witness sworn by the defendant was Lancaster, the plaintiff in the cause. He testified that he was the administrator of the estate of Thomas H. Touhey; that the assets which came to his hands were sufficient to pay the debts of said Touhey; that he had made three annual settlements of his estate; that so far as he knew, Touhey had no relations in St. Louis.

The court gave the following instruction at the instance of the plaintiff: “If the jury believe from the evidence that proof of the death of the assured Thomas H. Touhey was furnished to defendant by plaintiff, and the jury believe from the evidence that said Thomas H. Touhey had died by drowning before said proof of death and the bringing of this suit, then they will assess the damages at the sum of twenty five hundred dollars and may further find interest to this date at the rate of six per cent. per annum from the date of the expiration of the sixty days after proof of loss furnished;” to the giving of which instruction the defendant at the time excepted.

The following instructions were given on behalf of the defendant:

6. “The court instructs the jury that the perils of navigation are general and not specific perils, and in order to find for the plaintiff in this case they must believe from the evidence that Thomas H. Touhey whose life was insured by defendant was a passenger on board the propeller Badger State on or about the evening of Sept. 20th, 1869; that said Touhey did not leave said boat either at the wood dock on the Canada shore of St. Clair river, or at Detroit, and that said Touhey on said date fell overboard from said boat and was thereby drowned.”

8. “The court instructs the jury that, if they believe from the evidence of the plaintiff that said evidence is quite as consistent with the view that Thomas H. Touhey went ashore from...