Modern Woodmen of America v. Hurford

• Decision Date: 11 October 1921
• Citation: 235 S.W. 24,193 Ky. 50
• Parties: MODERN WOODMEN OF AMERICA v. HURFORD.
• Court: Kentucky Court of Appeals

235 S.W. 24

193 Ky. 50

MODERN WOODMEN OF AMERICA v. HURFORD.

Court of Appeals of Kentucky.

October 11, 1921

Rehearing Denied Dec. 16, 1921.

Appeal from Circuit Court, McCracken County.

Action by Rosa A. Hurford against the Modern Woodmen of America. Judgment for plaintiff, and defendant appeals. Affirmed.

Truman Plantz, of Warsaw, Ill., Barbour & McDavid, of Springfield Mo., and W. V. Eaton, of Paducah, for appellant.

A. M Nichols, of Paducah, for appellee.

SAMPSON J.

The appellant, Modern Woodmen of America, is a fraternal beneficiary insurance society, organized under the laws of the state of Illinois, and having lodges and doing business in the state of Kentucky and elsewhere.

In April, 1911, Charles A. Hurford of Paducah, Ky. became a member of the society and was issued a certificate of insurance for $1,000; his mother, appellee, Rosa A. Hurford being named as beneficiary in the policy. In the following October young Hurford disappeared from Paducah. In April 1912, an acquaintance met him in Morley, Mo., when Hurford said "he was going down in the swamps to get some timber, him and some other fellows."

Since that time young Hurford has not been heard from or of by his family or any one so far as appears from this record. In August, 1919, appellee, Rosa A. Hurford, mother of Charles A. Hurford, and beneficiary in the certificate of insurance, instituted this action in the McCracken circuit court to recover on the policy, averring:

That her son, Charles A. Hurford, was dead; "that on or about the 14th day of October, 1911, said Charles A. Hurford left his home in Paducah, Ky. and has since said time been gone from the state of Kentucky for a period of more than seven successive years; that said Charles A. Hurford is a single man and resides with his mother, who is the plaintiff herein, and his home life was always pleasant and agreeable, and the cause of his absence is unknown to the plaintiff. She further states that the said Charles A. Hurford has not been heard of by her or any one else, to her knowledge, since the month of April, 1912. She states that said Charles A. Hurford was a resident of Paducah at the time he departed therefrom and had resided at said place all his life."

A demurrer was interposed to the petition, but while it was pending the plaintiff filed an amended petition in which she alleged:

"That Charles A. Hurford has not been heard from by any one since his departure from Kentucky as set out in the original petition, and he had at the time of the filing of the original petition been absent from Kentucky for more than seven consecutive years, without ever being heard of or from by any one and has not to this day been heard of or from by any one."

The defendant by answer, after traversing the material averments of the petition as amended, sets forth two separate defenses:

(1) The said Charles A. Hurford is not dead, and there is no evidence that he is not a resident at Morley, Mo., where he was last seen, and as he did not disappear from Kentucky the presumption of death by absence of seven consecutive years, as provided by section 1639, Kentucky Statutes, has no application to the case.

(2) The by-laws of the society, which are duly pleaded in the answer of the appellant, specifically provides in section 66 (now 78) thereof:

"No lapse of time or absence or disappearance on the part of any member, heretofore or hereafter admitted into the society, without proof of the actual death of such member, while in good standing in the society shall entitle his beneficiary to recover the amount of his benefit certificate, except as hereinafter provided. The disappearance or long continued absence of any member unheard of, shall not be regarded as evidence of death or give any right to recover on any benefit certificate heretofore or hereinafter issued by the society until the full term of the member's expectancy of life, according to the National Fraternal Congress Table of Mortality, has expired within the life of the benefit certificate in question, and this law shall be in full force and effect, statutes of any state or country or rule of common-law of any state or country to the contrary notwithstanding. The term within the life of the benefit certificate as here used means that the benefit certificate has not lapsed or been forfeited, and that all payments required by the by-laws of the society have been made."

A general demurral was sustained to the answer with leave to amend. In due course the answer was amended to the satisfaction of the trial court. But little evidence was taken. The mother of the insured, the beneficiary in the certificate, testified that her son, who was then 20 years of age and a member of the society, went away one day in October, 1911, to collect his week's wages due from a manufacturing concern for which he worked, saying that he would be back in a short while; that later in the same day he sent her $7 of his week's wages by a neighbor, who also carried her information that her son had said that he would be home in a short while to go with her down town; that she had never seen or heard from him since that time. She testified, however, that an acquaintance had told her that he in April, 1912, had met her son in a small town in Missouri and that the son had told him "that he was going down in the swamps to get some timber," and that he had never seen or heard from her son since that time; that she had made inquiry of the police force in the city of Paducah, Ky. and of other cities, in an effort to find her son, but had been unable to hear of or from him. Later she applied to the officers of the appellant society for assistance in finding her son, but the society was unable or unwilling to render her any assistance. A sister of the insured testified, in substance, the same as the mother concerning the disappearance of the insured and his absence from home. The only other witness called was Manley Hardeson, who testified that he had seen Charles A. Hurford, the insured, in Morley, Mo., in April, 1912; that he had a talk with him, and young Hurford said "he was going down into the swamps to get some timber, him and some other fellows." The witness was then asked by the court: "That was the last time you ever saw or heard of him? Ans. Yes, sir."

A jury trial was waived and the law and facts submitted to the judge, who entered judgment in favor of appellee, Rosa A. Hurford, against the society Modern Woodmen of America for the sum of $1,000 on the certificate of insurance. From this judgment the society appeals.

It urges but two grounds for reversal of the judgment: (a) Section 1639 of Kentucky Statutes has no application to the facts of this case, because the insured, Charles A. Hurford, had established a residence in the state of Missouri after his departure from Kentucky, and if he disappeared, as contended by the beneficiary, he did so from the state of Missouri and not from the commonwealth of Kentucky. (b) The by-laws of the society in force at the time Charles A. Hurford became a member thereof precluded him and his beneficiary from a recovery on the certificate of insurance in the absence of proof of actual death, except where the absence of the insured without intelligence continued for a period equal to his expectancy, during which time the premiums on his certificate had been paid in full.

It is hardly worth while, in the light of the recent opinion of this court in the case of Prudential Insurance Co. v Gatz, 182 Ky. 218, 206 S.W. 299, to devote much space to the consideration of the first objection made by appellant to the affirmation of the adjudgment, for in the Gatz Case the facts were very similar to the ones here involved, and it was distinctly held that section 1639, Kentucky Statutes, does not repeal, but is simply declaratory of, the common-law rule that after an absence of seven consecutive years, without intelligence concerning the appellee, a presumption is created sufficient to throw upon the other party the burden of proving the person to be alive, and although the insured in the Gatz Case had with his wife and children departed from the state of Kentucky and taken up his residence in Indianapolis, Ind., where he remained several months, conducting a business, and had while there suddenly and unexpectedly announced his intention of abandoning his home and family and did in fact abandon his home, family, and place of business in the state of Indiana, from which place his wife and family soon returned to Kentucky and after a lapse of more than seven years without intelligence from her husband, the wife, being the beneficiary in the policy of insurance, instituted her action in the Jefferson circuit court of this state to recover on the policy of insurance and her claim was upheld...