Magness v. Modern Woodmen of Am.

• Decision Date: 17 November 1909
• Citation: 146 Iowa 1,123 N.W. 169
• Parties: MAGNESS ET AL. v. MODERN WOODMEN OF AMERICA.
• Court: Iowa Supreme Court

146 Iowa 1

123 N.W. 169

MAGNESS ET AL.

v.MODERN WOODMEN OF AMERICA.

Supreme Court of Iowa.

Nov. 17, 1909.

Appeal from District Court, Johnson County; R. P. Howell, Judge.

Action at law to recover upon a benefit certificate or life insurance policy issued by the defendant upon the life of W. H. Magness. There was a judgment for the plaintiffs, and defendant appeals. Affirmed.

See, also, 118 N. W. 386.Truman Plantz and Wade, Dutcher & Davis, for appellant.

John J. Ney, for appellees.

WEAVER, J.

This case has been twice tried, and in each instance the issues of fact were determined in favor of the plaintiffs. On the first trial the verdict was set aside by the district court on defendant's motion, which was based on several distinct grounds, and on appeal to this court it was held that, in view of the large discretion vested in the trial court in the matter of granting new trials and the impossibility of determining from the record the precise ground upon which the motion had been sustained, the order granting a new trial should be affirmed. On being remanded a new trial was had to the court, jury being waived, and, as we have already said, there was judgment for the plaintiffs, and the defendant appeals.

In its argument to this court appellant bases its demand for a reversal of the judgment below upon the single proposition that the evidence is not sufficient to establish the death of W. H. Magness. The membership of said Magness in good standing in the defendant association, the relation of the plaintiffs as the beneficiaries of his certificate, and the amount recoverable, if any, are for the purposes of this case all conceded, and the single inquiry which we are to consider is whether, giving the evidence the most favorable construction of which it is reasonably capable in favor of the appellees, the jury could properly find that W. H. Magness is dead. We have no hesitation in answering this question in the affirmative. There was no direct evidence of Magness' death; but the fact was sought to be established by circumstances, the chief of which was the disappearance of said insured person from his home and from the knowledge of his family and friends for a period of more than seven years. The case as made by the plaintiffs, and as the jury was at liberty to find the truth to be, is substantially as follows: On June 13, 1899, Magness disappeared from his home in Iowa City. He was then 36 years old, married, and living with his wife and two children, a daughter and son, aged, respectively, 10 and 8 years. The relations between him and his family were harmonious and affectionate. He was sober and industrious. For several years he had worked as a plasterer, receiving fair wages, when his health failed to some extent, and he undertook an agency for the sale of sewing machines. In this he does not seem to have been very successful and was somewhat indebted, but not in such large measure as to weaken the courage of a man of ordinary physical and mental resources and, as far as appears, he and his family were living in a reasonable degree of comfort. On the day last named he left home for the ostensible purpose of delivering a sewing machine in a neighboring town and never returned. In September following his wife received a letter purporting to be written by him from South Dakota inclosing $10, and saying he would return home in October. A few days later he wrote again saying he wished to see his family and would try to be there in October. He further informed her he was going to Minneapolis, and requested her to...