Schell v. Metropolitan Life Ins. Co.

• Decision Date: 06 March 1928
• Docket Number: No. 20099.,20099.
• Parties: SCHELL v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

3 S.W.2d 269

SCHELL v. METROPOLITAN LIFE INS. CO.

No. 20099.

St. Louis Court of Appeals. Missouri.

March 6, 1928.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by Veronica Schell against Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Fordyce, Holliday & White and Walter R. Mayne, all of St. Louis, for appellant.

A. F. C. Blase, Durward S. Brown, and W. D. Chapman, all of St. Louis, for respondent.

SUTTON, C.

This is an action on an insurance policy issued on the life of the plaintiff's husband and made payable to plaintiff as beneficiary. The action was commenced on February 2, 1922. By the terms of the policy sued on, defendant, in consideration of the payment of specified annual premiums, promises to pay plaintiff $1,000 "upon receipt of due proof of the death of the insured." The policy was issued on October 29, 1910. The first annual premium was paid upon the issuance of the policy, and succeeding annual premiums were payable each year on October 29th. All the annual premiums were paid up to and including October 29, 1913. The insured disappeared on October 7, 1914, and had not since been seen or heard from at the time of the trial, which was had on December 7, 1926. Default was made in the payment of the premium due on October 29, 1914. At that time the policy had a cash surrender value of $22, and the insured was entitled to that amount in cash, or paid-up insurance for $72, or extended insurance for $1,000 for the period of three years, at his option. The insured not having exercised his option, the policy was automatically continued in force for $1,000 for a period of three years from October 29, 1914.

The trial, which was had before the court and a jury, resulted in a verdict and judgment in favor of plaintiff for the face amount of the policy, with interest, and the defendant appeals.

The defendant assigns error here upon the refusal of its instruction in the nature of a demurrer to the evidence. The grounds of this assignment are: (1) That the evidence fails to show that the death of the insured occurred within the duration of the policy; and (2) that the plaintiff failed to make proof of death as required by the policy.

The evidence shows that the insured resided with his family in the city of St. Louis; that he worked continuously for the Union Electric Light & Power Company as a lineman for a period of five years next before his disappearance; that he was a man of industrious habits, rarely ever unemployed; that he provided suitably for his family; that he had four children, the oldest six or seven years of age and the youngest yet unborn; that he was never derelict in his duties to his family; that there was no quarrel or unpleasantness between him and his wife; that they lived happy and contented together; that there was no word or suggestion from him indicating in any way an intention to desert his family, and there was nothing to show any motive whatever for his doing so; that he had never before deserted or mistreated his family, but had always treated them as a husband and father ought; that about 7:30 o'clock in the morning on October 7, 1914, he left his home to go to his work, as was his custom; that he was never afterwards seen or heard from; that the plaintiff, who was then pregnant and within one month of her accouchement, made inquiry of the Union Electric Light & Power Company, with whom the insured was employed, and made such other inquiry as she was able to make, in view of her helpless condition and humble circumstances, without avail.

Is it probable under these facts that the insured voluntarily abandoned his home and family? It is difficult to believe that he suddenly developed into such a monstrous creature. Voluntary abandonment is utterly out of keeping with his nature and character as shown by his previous conduct and habits. His unexplained absence for a period of seven years affords a rebuttable legal presumption of his death at some time during that period, which becomes conclusive in the absence of evidence to the contrary. It is true there is no legal presumption from such absence alone that death occurred at any particular time within the period of seven years, but there is a legal presumption of death at some time within that period. And it is generally held that evidence of character, habits, domestic relations, and the like, making the abandonment of home and family improbable and showing a want of all those motives which can be supposed to influence men as to such acts, may be...