Miller v. Mutual Life Ins. Co. of New York

• Citation: 79 S.W.2d 750
• Decision Date: 07 January 1935
• Docket Number: No. 18189.,18189.
• Parties: MILLER v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: Court of Appeal of Missouri (US)

79 S.W.2d 750

MILLER v. MUTUAL LIFE INS. CO. OF NEW YORK.

No. 18189.

Kansas City Court of Appeals. Missouri.

January 7, 1935.

Rehearing Denied February 18, 1935.

Appeal from Circuit Court, Cooper County; Nike G. Sevier, Judge.

"Not to be published in State Reports."

Action by Charles T. Miller against the Mutual Life Insurance Company of New York. From a judgment for plaintiff, defendant appeals.

Affirmed.

W. C. Michaels and Kenneth E. Midgley (of Meservey, Michaels, Blackmar, Newkirk & Eager), both of Kansas City, Frederick L. Allen, of New York City, and Pendleton & Martin, of Boonville, for appellant.

Roy D. Williams, of Boonville, and Frank J. Quigley, of Tipton, for respondent.

TRIMBLE, Judge.

Plaintiff, beneficiary in a $3,000 policy on the life of his son, Vest A. Miller (taken out by the latter April 16, 1917), brought this suit January 11, 1933, to recover the amount thereof, alleging the death of insured on March 26, 1932. The defense was that insured was not dead, but that he had merely disappeared. The reply denied this. At the June, 1933, term of court, the case was tried resulting in a ten jurors' verdict for plaintiff in the sum of $2,580, being the full amount of the policy, less the amount of a loan thereon made prior to 1931, plus interest to date of judgment.

The main contention of defendant is that its demurrer, offered at the close of all the evidence, should have been sustained and the jury directed to find for defendant; hence it is necessary to set out the evidence, perhaps at much length and with unnecessary particularity, in order that the proper disposal of that question may be made manifest.

During the course of the trial it was admitted (1) that the policy was in full force and effect on March 26, 1932; (2) that due notice of plaintiff's claim, and affidavits in support thereof, were duly sent to defendant; and (3) that no contention will be made in this case on the matter of furnishing due proof. We (counsel for defendant) will not admit, however, that proof furnished established the fact Vest Miller is dead."

The evidence in support of plaintiff's case tends to show the following:

The insured, Vest A. Miller, at the time of his claimed death, was 38 years old. He had never married. He had held and maintained the policy in full force since April 16, 1917. He owned a farm of 290 acres located about three miles south of the town of Tipton and one mile north of his father's farm, both of said farms being on the concrete state highway No. 5. Although the father had two other children, they were both married and living by themselves. Vest A. Miller, the insured, was the youngest of the three children, and when his mother died in 1930 he went to live at his father's home.

Vest A. Miller was a farmer and trader. In 1906, he bought 220 acres of his above-mentioned farm for $22,000, and gave a mortgage back on it for $16,000 of the purchase price. Later he bought an adjoining 70 acres for $7,000, borrowing the money from his father. From the time of his purchase of the 220 acres, his father, the plaintiff, began "backing" him in his business ventures by going on his notes and furnishing him financial assistance when called upon to do so.

Insured handled live stock extensively, having on hand, a large part of the time, from 400 to 500 head of hogs and from 25 to 100 head of cattle. He also traded extensively in live stock, and also dealt heavily on the Board of Trade or "bucket shop" in Sedalia. He was what is called a "big operator." He had a man, Dexheimer, who lived on the farm he first bought and did the farming and feeding thereon for him, and another man, Vickers, possibly on the adjoining 70 acres above mentioned, or on a farm referred to in the evidence as the "Graham place." At times insured made money, and at other times he lost a great deal. Especially, beginning with what is called "the business depression," possibly in 1930, he began to lose money steadily until finally he was unable to make any money at all. Because of the depression and his losses, his father who has, as heretofore stated, "backed" him by going on his notes, was obliged to mortgage his farm of 300 acres to the extent of $15,500 in order to pay notes of his son on which the father was security; and in addition to this, the father was on $5,500 worth of other notes owed by the son; so that in March, 1932, insured's own farms were burdened with a mortgage of $14,000 and, taking into consideration the mortgage on his father's farm of $15,500, which was the son's debt, insured owed something in the neighborhood of $35,000 and had involved his father also.

Insured, prior to 1930, was happy, jovial in his disposition, and in manners, neat, careful of his personal appearance, a successful maker of money. But with the business depression beginning in 1930, insured's financial condition and prospects began to darken and gradually grew darker until in March, 1932, he could not, even with his father's help, obtain money or credit with which to continue in business. The interest on the mortgage on his farm would become due April 1, 1932, the premiums on his life insurance policies, and the interest on whatever loans he had obtained thereon, together with interest on his unsecured notes, would also commence falling due about that time, except possibly the premium on the policy in suit which had been paid for perhaps a year beyond April 1, 1932. Worry, thus caused, began to affect his health and a marked change took place in his actions and general appearance. He ceased attending church, began to avoid and shun his friends, became silent and morose, and apparently lost his appetite. A few weeks before his disappearance on March 26, 1932, Dr. Wilson, a physician living at the nearby town of Fortuna, who had been his father's family doctor and who had known insured since he was four years of age, testified that up to a year or two before the above date "he was strong and healthy." He had in the past consulted witness, but the doctor said he had found nothing radically wrong with insured, and had not noticed any difference in his appearance up to six months before March 26, 1932; but a few weeks before his disappearance the doctor noticed that "he looked like he was sick and his color was not as good as it had been." Witness said they were friends; that there was a change in his mental condition. Witness had talked to him frequently before that; saw him within the last three weeks, but witness noticed "he didn't act as friendly and jovial as he had; he had been jovial." Before that, witness had seen him on the streets, had been around with insured, and the latter had come to witness' office and talked with him; never saw insured in a melancholy state, and he appeared to be in his right mind when witness saw him last.

Dexheimer, who last saw him on Friday night before he left on March 26, 1932, testified that at that time he had an hour's conversation with insured; in it, insured told witness "about being in debt * * * and all about his insurance, how much he would draw if he got killed or how much he would draw if he just died, and complained about being sick; he said he was sick and didn't feel good. * * * He was talking about being in debt and he said it looked like he couldn't do anything more; that he couldn't pay off anything. He said he made pretty good off his last bunch of cattle, and it looked like he couldn't do anything more and he believed he would just quit. * * * He said he didn't have anything to live for. * * * He said he wanted to sell his truck, if he could, to pay his interest."

On cross-examination, witness said he did not know the day he had the conversation about the truck, but that it was possibly about two or three weeks before insured went away.

Mr. Briscoe, insured's uncle by marriage, and who had known him for 35 years, testified concerning his farming and trading operations (about which there seems to be no controversy), and that he took pride in his personal appearance and was very proud of his car; he had handled a lot of money and made a lot of money, but from 1930 on, he had borrowed a lot of money and lost a lot; had involved his father. In 1930 and 1931 his physical condition was good, but in 1932 he was pale and looked to be sick. He let his hair grow and his beard was not neat. A change took place in him; the last time witness talked to insured was the day before March 26, 1932. He talked about his troubles and was sick. He said if he could raise a little money he could raise a crop, but it did not look like there was anything he could do. He owed about $24,000 and interest of $1,000, and a $15,500 mortgage which was on his farm.

Vickers, the man who worked for insured on the Graham place, testified that, about two weeks before insured disappeared, witness had a conversation with him, and they were talking about the drowning of Dr. A. W. Nelson (a very prominent man at that time and who had drowned in the Lake of the Ozarks), and during the course of the conversation insured asked how long it would take for a man to drown, and when it was said it would take about three minutes, insured said if he should ever commit suicide he would prefer water.

Witness further testified that on Saturday (the day insured disappeared) about noon, insured drove to his father's home and stopped in front of the gate and "sat there quite awhile." He got out of the car finally and stood with one foot on the running board and the other on the ground, and then went into the house. Insured was not in the habit of sitting in his car on his arrival, but when he would come home "he would get right out and go in."

Mr. Carter, a merchant in Fortuna, testified that some time after March 13, 1932, in a conversation had with insured shortly after Dr. Nelson was drowned, and concerning the fatality, the insured "made the remark that if he was going to drown himself he would take off his clothing."...