Policemen's Benev. Ass'n of Chicago v. Ryce

• Decision Date: 22 December 1904
• Citation: 213 Ill. 9,72 N.E. 764
• Parties: POLICEMEN'S BENEV. ASS'N OF CHICAGO v. RYCE.
• Court: Illinois Supreme Court

213 Ill. 9

72 N.E. 764

POLICEMEN'S BENEV. ASS'N OF CHICAGO

v.RYCE.

Supreme Court of Illinois.

Dec. 22, 1904.

Appeal from Appellate Court, First District.

Action by Mary Ryce against the Policemen's Benevolent Association of Chicago. From a judgment for plaintiff, defendant appealed to the Appellate Court. The judgment was affirmed, and defendant appeals. Affirmed.Cannon & Poage, for appellant.

John C. King and William J. King (Andrew J. Hirschl, of counsel), for appellee.

The following is a statement of the facts in this case, as made by the Appellate Court in their opinion deciding it, with the exception of the parts omitted where stars occur, to wit:

‘James Ryce on February 19, 1890, was a member of the police force of the city of Chicago, in good standing, and on that day received a certificate of insurance from the appellant association, in which the appellee, Mary Ryce, then his wife, was named beneficiary, by which the association agreed to pay to her, within thirty days after satisfactory evidence of the death of said James Ryce, two dollars for every member of the association, provided that amount should in no event exceed $2,000. On May 15, 1895, while still a member of said association, in good standing, and having paid all his dues and assessments up to that time, said Ryce disappeared, and has never since May 16, 1895, been heard of, although diligent search for him had been made up to the time of the commencement of this suit, on August 8, 1902. Presuming that he was dead, appellee, having paid all her husband's dues and assessments, brought this suit, and recovered a verdict, and judgment thereon, of $2,000, from which the association has appealed. * * *

‘The evidence * * * shows, in substance, that James Ryce was married to appellee in May, 1889, and was then aged about twenty-nine years. They lived happily together as husband and wife until May 15, 1895, and had one child born to them, which was nearly five years of age at that time. Mr. Ryce had been a member of the police force of Chicago prior to his marriage, and was thereafter from time to time until May 7, 1895, when, under a general order of the then mayor, he was, with five hundred other police officers, discharged. During his time of service he was discharged once or twice prior to May 7, 1895, as the evidence tends to show, because of changes in the city administration. * * * The evidence on behalf of the appellant is also to the effect that he was once discharged because of absence from duty without permission, intoxication, and neglect of duty. There is also a confiict in the evidence as to Mr. Ryce's habits with regard to the use of intoxicating liquors, but, * * * while it tends to show that he was in the habit of drinking occasionally, * * * he was in no way seriously affected thereby. On May 15, 1895, he left his home, at Cragin, near the western limits of Chicago, in the morning, after bidding good-by and kissing his wife and little girl, and stating to the former that he would return on the afternoon train. His wife says that she expected that he would return on the afternoon train, but he did not; that she waited until the twelve o'clock train was due, but he did not come, and she has never since heard anything from him. On the second day after his disappearance, appellee's brother and a police officer named Lyons inquired for Mr. Ryce at a saloon on West Madison street, in Chicago, where it was suggested he might go, and were told by a bartender that Mr. Ryce had been in the saloon the previous day or evening. With this exception, no information or intelligence as to his whereabouts has ever been received by his wife, relatives, friends, or any one else, so far as known, although a dispatch containing his description in detail, and that he had been missing since the previous Wednesday, which was May 15, was sent out on May 21, 1895, to each police station in the city of Chicago, and it was read to the police officers at roll call in at least one station. It appears that it was the custom to read at roll call such dispatches at every police station in the city. The record of the dispatch in question, kept by the police department in Chicago in the regular course of business, indicates that this dispatch was sent to all the stations in Chicago on said May 21st. The evidence shows that appellee made numerous inquiries of her neighbors and friends and of numerous relatives of Mr. Ryce, and, as she says, of ‘every one I came in contact with-all that I knew’-but was unable to get any information with regard to him. It appears that his disappearance was a matter of common talk among his acquaintances and neighbors, and that many of them had been inquiring after him to find out his whereabouts, but no information was ever received by the many who were called to testify. Also several of his relatives who were called to testify stated that they made like inquiries, but none of them could get any information of him. It is shown that one of his sisters, Mrs. Bridget Walsh, with whom he lived for about five years prior to his marriage, and whom he visited once or twice a week at her home after his marriage, notified certain of his relatives in Wisconsin and in Ireland of his disappearance, but received no communication from them. She says in this regard: ‘I have kept up the correspondence among my relatives, and inquired for my brother, and never heard from him in any way. * * * I corresponded with my mother, in Ireland-wrote that my brother had disappeared, and that I could not find him, and I believed him dead. I asked her if she had heard from him. She said ‘No.’ I got a reply by letter about six weeks later. I have not that letter. I don't know where it is.''

Upon appeal to the Appellate Court, the judgment of the circuit court in favor of appellee for $2,000 has been affirmed, and the present appeal is prosecuted by the appellant association from such judgment of affirmance.

MAGRUDER, J. (after stating the facts).

By stipulation between the parties, substantially all the facts necessary to establish a right of recovery in the appellee are admitted, except the fact of the death of the insured. It was agreed between the parties that, at the time of the commencement of this suit, James Ryce, the insured, was a member of the appellant association in good standing; that all dues and assessments were paid up; and that the association on February 19, 1890, issued the certificate of insurance, as described in the statement preceding this opinion, to James Ryce. The undisputed evidence in the case is that James Ryce, the insured, was the husband of the appellee. The only question, therefore, to be determined by the jury, was the question whether or not the jury were authorized by the evidence to presume that the insured was dead at the time of the commencement of the present suit. This question is raised upon the record by the motion of the appellant at the close of the evidence of the plaintiff below, and again at the close of all the evidence, to instruct the jury to find a verdict in favor of the defendant below (the appellant here). At the close of all the evidence the defendant submitted to the court a written instruction to the jury to find the issues for the defendant, and this instruction was refused, to which ruling exception was taken by the defendant. The facts are settled by the judgments of the lower courts, and the only matters to be decided by us are questions of law arising out of the action of the trial court in giving and refusing instructions and in ruling upon the evidence.

The court gave one instruction for the plaintiff below, and three instructions for the defendant below. The instruction so given for the plaintiff below (appellee here) is as follows:

‘The court instructs the jury, as a matter of law, that if you find from the preponderance of the evidence in this case that James Ryce, the insured, left his residence and home, and has been continually absent therefrom for a period of over seven years, without any intelligence being received of his whereabouts by the members of his family, relations, neighbors, and acquaintances within said period or at any time thereafter, then such continuous absence, together with such lack of intelligence, raises the presumption of death of the said James Ryce, and the jury on such proof have a right to presume his death.’

The three instructions so given on behalf of the defendant below (appellant here) are as follows:

‘(1) The jury are instructed that in determining whether the insured, James Ryce was dead at the commencement of this suit they must consider all the circumstances under which he left which are shown on this trial, together with the length of time he has been gone, if any, and from all these facts and circumstances the jury must determine whether the said James Ryce was in fact dead at the time of the commencement of this suit.

‘(2) The court instructs the jury that, in order to recover in this case, the plaintiff must establish her case, as charged in her declaration, by the preponderance of the evidence.

‘(3) The jury are instructed that if you believe from the evidence and all the facts and circumstances shown on this trial that the insured, James Ryce, was not dead at the time of the commencement of this suit, then your verdict must be for the defendant.’

1. It is said by counsel for appellant that the instruction given for the appellee is erroneous, upon the alleged ground that it presents to the jury the presumption of death, arising from the absence of the insured for seven years without any intelligence as to his whereabouts, as a conclusive presumption, and that in this respect the instruction amounted to a direction to the jury to find for the appellee if an absence of seven years without such intelligence was shown. The language of the instuction is substantially the same as that which has been used by this court in a number of cases...