Northwestern Mut. Life Ins. Co. v. Stevens

• Decision Date: 16 December 1895
• Docket Number: 635,636.
• Citation: 71 F. 258
• Parties: NORTHWESTERN MUT. LIFE INS. CO. v. STEVENS et al. BANKERS' LIFE ASS'N OF MINNESOTA v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

71 F. 258

NORTHWESTERN MUT. LIFE INS. CO. v. STEVENS et al.

BANKERS' LIFE ASS'N OF MINNESOTA v. SAME.

Nos. 635, 636.

United States Court of Appeals, Eighth Circuit.

December 16, 1895

J. W Deweese (F. M. Hall was with him on the brief), for the Northwestern Mut. Life Ins. Co.

James W. Dawes (Joseph R. Webster was with him on the brief), for the Bankers' Life Ass'n of Minnesota.

F. I Foss (Geo. H. Hastings, E. E. McGintie, and W. R. Matson were with him on the brief), for defendants in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge.

The life of George D. Stevens was insured by each of the plaintiffs in error for the benefit of his wife and child the defendants in error. The latter brought actions against the insurance companies for his death. In their complaints they alleged that Stevens was dead, and that they had given notice and made the proof of his death in July, 1893. The policies provided that the companies would pay the amounts insured 60 days after notice and due proof of the death of the insured. The companies denied in their answers that the insured was dead, and denied that the defendants in error had given them notice of proof of his death 60 days before the actions were commenced. The two actions were tried at the same time and to the same jury, who returned verdicts against the companies. The errors assigned are to the charge of the court; and they relate principally to the rules that should govern a jury in determining whether a man who disappeared less than seven years before an action for his death was commenced was dead before the commencement of the action.

The salient facts in the case were undisputed, and they were these: On August 19, 1892, Stevens lived at Crete, in the state of Nebraska. He was the owner of all but five shares, of $100 each, of the State Bank of Nebraska, and was its cashier and manager. His wife owned the other five shares. The capital of the bank was originally $50,000, but that capital had been impaired to the extent of $38,000. The state bank examiner had discovered this fact in July of that year, and had notified Stevens that the bank would undoubtedly be closed unless the capital was restored to $50,000. Stevens had been endeavoring for many days to sell $38,000 of the stock of the bank, which was unissued, in order to restore its capital, but he had failed. The bank was insolvent. Stevens had some real estate in Crete, which was worth about $20,000; but he was also insolvent. He owed the bank about $8,000 on his own note. He had persuaded his assistant cashier, as a favor to him, and without any consideration, to give his not for $5,000, and Stevens had indorsed and delivered it to the bank, by which it was carried as a part of its assets. He owed to other banks $5,000 on promissory notes, which he had signed, and had persuaded a friend to sign with him as an accommodation. For six years he had been the administrator of the estate of one Jarrett Young. As such administrator he had received at least $2,600, but he had never accounted for or paid over to the heirs of the estate any part of it. The widow had demanded an account of him in vain. One of the heirs had repeatedly demanded an account of him, and had asked to know where the money of the estate was, but Stevens had continually put him off. In the latter part of July he demanded the account again, and told Stevens that they must ask him to do something pretty soon, or they would have to commence proceedings to make him do so. The community in which Stevens lived was not aware of these facts. In that community he was respected and esteemed. He was a member of the Congregational Church, a member of the Modern Woodmen, and belonged to various other societies. His moral and financial reputation was yet good. He was between 40 and 50 years of age. He had a wife and two children, and was an affectionate husband and an indulgent father. He was attached to his family, and his domestic relations were agreeable. On Saturday, August 19, 1892, he took $60 in money and a draft on a Chicago bank for $75 from his bank in Crete, gave his wife $15 and his servant $5, took two valises, one of which contained nothing but an overcoat, and went to Chicago. He registered at an hotel in that city on Sunday morning, and visited the exposition grounds on that day. He remained at this hotel until about 11 o'clock in the forenoon on Tuesday, August 22, 1892, when he paid his bill, took his valises, said that he was going to Milwaukee, but intended to stop at Racine on the way, and left. A few moments later he met a friend in a ticket broker's office, where he asked for a ticket, and said he was going somewhere for a couple days, then to Milwaukee, and then to his home. None of his family, his friends, nor his acquaintances have ever seen or heard from him since that moment, unless the witness Hamilton did. He testified that he knew him well, and that he met, recognized, and conversed with him in San Francisco about September 5, 1893; but some of Hamilton's acquaintances testified that his reputation for veracity was bad in the community in which he had lived. Strenuous efforts were made by Mrs. Stevens and some of the citizens of Crete to find her husband. His picture and a notice of his strange disappearance were published in the paper of the Modern Woodsmen, which has a circulation of 150,000. The police officers of Chicago searched the hotels of that city for a trace of him, and scattered 5,000 circulars containing descriptions of him over the United States and Canada. Some of the daily papers of Chicago and Boston contained extended notices of his disappearance, but no further tidings of him or of his whereabouts were received.

Upon this state of facts, the court charged the jury at considerable length, and gave 14 requests for instructions that were submitted by counsel, either in the forms in which they were submitted or with modifications that suggested themselves to the court. Exceptions were taken to many parts of the charge of the court. Two of the requests given to which exceptions were taken were: '(1) The jury is instructed that the death of an absent person may be presumed in less than seven years from the date of the last intelligence from him, from facts and circumstances other than those showing his exposure to danger which might probably result in his death. (2) The jury is instructed that seven years is the period at which the presumption of continued life ceases. But this period may be shortened by proof of such facts and circumstances connected with the person whose life is the subject of inquiry as, submitted to the test of reason and experience, would force the conviction of death within a shorter period.'

It is a general rule that a state of facts once shown to exist is presumed to continue until a change, or facts and circumstances inconsistent with its continued existence, are proved. A living man is presumed to continue to live until the contrary is shown or is presumed from the nature of the case. All the authorities concur in the general proposition that the presumption of life continues seven years after the unexplained disappearance of a man under ordinary circumstances, from whom no tidings return to his friends or acquaintances, and that then the presumption of life ceases and the presumption of death arises. These presumptions however, are but rational inferences from the given state of facts, which so many courts have agreed that reasonable men, in the exercise of sound judgment, would naturally draw, that they have become rules of action and of decision. They are, after all, only presumptions of fact; and, when the state of facts from which they are drawn is modified, the presumptions or inferences drawn from it must and ought to change. It is conceded that when one who is last seen in a state of imminent peril, that might probably result in his death, is never again heard from, though diligent search for his is made, the inference of immediate death may justly be drawn. It goes without saying that if a guilty man, who has been indicted for a heinous crime, flees in the full vigor of health from impending disgrace and just punishment, and...