Pfeifer v. Supreme Tribe of Ben Hur

• Decision Date: 04 May 1915
• Citation: 176 S.W. 710,191 Mo.App. 38
• Parties: JENNIE PFEIFER, Respondent, v. SUPREME TRIBE OF BEN HUR, Appellant
• Court: Missouri Court of Appeals

176 S.W. 710

191 Mo.App. 38

JENNIE PFEIFER, Respondent, v. SUPREME TRIBE OF BEN HUR, Appellant

Court of Appeals of Missouri, St. Louis

May 4, 1915

Submitted on Briefs April 5, 1915.

Appeal from St. Louis City Circuit Court.--Hon. George C. Hitchcock Judge.

AFFIRMED.

Judgment affirmed.

Karl M Vetsburg for appellant.

(1) The demurrer to the evidence offered by appellant should have been sustained. Bradley v. Modern Woodmen, 146 Mo.App. 428; Walsh v. Insurance Company, 162 Mo.App 553; Biegler v. Supreme Council, 57 Mo.App. 419; Modern Woodmen v. Gerdom, 2 L.R.A. (N. S.) 809; Hitz v. Ahlgren, 170 Ill. 60; Modern Woodmen v. Graber, 128 Ill.App. 585; Bailey v. Bailey, 36 Mich. 184; McNulty v. Mitchell, 84 N.Y.S. 89. (2) A presumption of death cannot arise unless diligent search and inquiry for the missing person has been made. Same cases as point 1.

Jno. B. Dempsey for respondent.

Death, like any other fact, may be established by circumstantial evidence, when direct evidence is not attainable; and when absence without tidings concurs with other attendant and supporting circumstances to produce the conviction that the party is dead, such proof is all that can be required. 3 Bacon, Benefit Societies and Life Insurance, sec. 470. The presumption of death may arise from circumstances of disappearance and being brought in contact with specific perils. Lancaster v. Washington Life Ins. Co. of New York, 62 Mo. 121. Facts and circumstances relating to the character, habits, conditions, affections, attachments, prosperity and objects in life which usually control the conduct of men, and are the motives of their actions, are competent evidence from which may be inferred the death of one absent and unheard from, whatever has been the duration of such absence. A rule excluding such evidence would ignore the motives which prompt human actions, and forbid inquiry into them in order to explain the conduct of men. Tisdale v. Connecticut Mutual L. Ins. Co., 26 Iowa 170; Fidelity Mutual Life Ins. Co. v. Mettler, 185 U.S. 308; Northwestern Mutual L. Ins. Co. v. Stevens, 71 F. 258. The presumption of continued life of the insured after December 24, 1911, is overcome not only by his character and habits, but also by the facts and circumstances attending his actions upon the day in question as well as by the fact of a specific peril shown by the evidence. In fact the testimony of Harry Pfeifer is so strong as to need only the production of the dead body of his father to establish death beyond cavil. The circumstances of Louis Pfeifer's disappearance not only tend to prove his death, but they tend to prove that he was killed, and the jury might legitimately infer that his death was a murder--that he was shot and killed. Supreme Council v. Boyd (Ind. App. Ct.), 37 N.E. 1105. The sufficiency of presumptive proof of death at common law depends upon the facts of each case and the rule requiring diligent search and inquiry as one of the conditions necessary to establish death from an absence of seven years does not apply where the man was last seen in a position of peril. And furthermore if the defendant wished the jury to pass upon the question of whether diligent search had been made it was for it to request said instruction. This it did not do and it ought not now to be heard to complain. Biegler v. Supreme Council of Am. Legion of Honor, 57 Mo.App. 419.

REYNOLDS, P. J. Nortoni and Allen, JJ., concur.

OPINION

REYNOLDS, P. J.

This action was begun on August 21, 1912, on a benefit certificate issued by defendant, a fraternal beneficiary association organized under the laws of the State of Indiana and authorized to do business in this State under our laws relating to such associations. The certificate was issued to one Louis Pfeifer as a member of the order, and under it, if he died while a member in good standing, the order contracted to pay to his widow, plaintiff here, the sum of $ 900. Alleging that Louis Pfeifer died on December 24, 1911; that at the time of his death he was a member in good standing of the defendant order; that plaintiff is the widow and the person mentioned in the certificate as the beneficiary; that she had complied with all the requirements of the certificate of membership and had demanded payment of the sum mentioned in it, and that it had not been paid, plaintiff demanded judgment for the amount.

The answer was a general denial.

It was admitted at the trial of the case that defendant was incorporated as alleged and that while defendant denied that the member was dead, it admitted that plaintiff had filed with it proofs of loss as required by the benefit certificate.

On the trial of the cause before the court and a jury, the testimony of plaintiff herself was to this effect: She and Louis Pfeifer were married in 1879. They had six children, all living, the youngest, Harry, about twenty-one years of age in June, 1913. Her husband's health was generally good. He was a carpenter by trade and worked steadily at that trade during the summers. They had never had any domestic trouble of any kind. He was of good disposition and cheerful; loved his family; spent his leisure time evenings and Sundays at home; attended lodge meetings, his wife sometimes accompanying him. During the last six or seven years he had spent his winters down south, in part for pleasure and in part for what he could earn by hunting and fishing. His family were raised and he thought he was entitled to spend his winters in this way. His wife occasionally accompanied him. There was never any disagreement between them about his making these trips in the winter. He made these trips in what was called a "Joe" or a "John" boat, which he built himself, and which appears to have been a boat square at both ends and in which he would drift down the river. His youngest son, Harry, had accompanied him on many of these trips for the last five or six years. While he was on these trips she heard from him sometimes every five weeks, sometimes oftener; more frequently the son wrote, keeping her informed of her husband's whereabouts, except when they were changing from one place to another. When her husband went away on these trips he made provision for the support of his wife during his absence. His trips were not for money making but for pleasure, she repeated, and her husband had never absented himself for any length of time without letting her know where he was. She had not heard from him since December 24, 1911.

On cross-examination plaintiff testified that her husband had always made provision for her; that she was not compelled to work to support herself and family unless she felt like it, although she worked occasionally to get a little extra spending money. They were very poor people and sometimes she wanted things she could not get with the money her husband had given her and she worked for those; also worked to pay the premiums on the insurance. At the time her husband left for this trip south, there were no disagreements or misunderstandings between them. She had not seen her husband nor his body since December 24, 1911.

The son of the parties, Harry Pfeifer, testified that his father was a carpenter; that he, the son, would be twenty-one years old in June, 1913. He had lived at home with his parents, who always got along well together and had no trouble that he knew of. His father had always treated his children nicely, stayed at home, working steadily and providing for his wife and for this son, who appear to have been the only members of the family living at home, although they had six children. Harry (this witness) had gone to school until he was fourteen years of age. After that he had worked. His father worked all summer at his trade as a carpenter, providing for his wife. When he went on these trips south he left money to keep her through the winter. On the trips south when Harry, the son, accompanied him, the father made just enough to provide for living by fishing and hunting. The last time his father left home was in September, 1911. The son, Harry, left with his father on this trip. There was not a word of any quarrel or dispute between his father and mother. They seemed to hate to part. While on these trips Harry and his father would write home and wait for answers which would generally take three, four or five weeks. They wrote as soon as they received an answer to their letters from his mother. When moving from one place to another they would write to his mother and tell her not to answer because they were going to move but to wait until they wrote again. His father was a peaceable man. They always kept to themselves; did not bother anybody or have quarrels with anybody; his father always tried to make fun and make the trip as happy as he could, earning just enough to keep them through the winter. They usually came back on the train on money that his father had made trapping and hunting. When he got home his father, after he had been home a day or two, settled down to work. He was not a drinking man. Witness had never seen him take but one or two drinks; never saw him drunk. The last time Harry saw his father alive was on the evening of Sunday, December 24, 1911. He and Harry were then on the Arkansas side of the Mississippi River, opposite Catfish Point, in Mississippi. Arkansas City was the nearest town and that was twelve or fourteen miles down the river. There was a man in the neighborhood where they stopped named Henning. His father had worked for him two or three days and he owed his father money. Across the river at Catfish Point there is a shanty boat and a house below "about two or three blocks." The shanty boat was occupied by a man and a woman but he did not know who lived in the house.

The places around there were...