Sovereign Camp W. O. W. v. Boden

• Decision Date: 16 December 1927
• Docket Number: (No. 4781.)
• Citation: 1 S.W.2d 256
• Parties: SOVEREIGN CAMP W. O. W. v. BODEN.
• Court: Texas Supreme Court

Page 256

1 S.W.2d 256

SOVEREIGN CAMP W. O. W. v. BODEN.

(No. 4781.)

Special Supreme Court of Texas.

December 16, 1927.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Suit by Mary Boden against the Sovereign Camp, Woodmen of the World. Judgment for plaintiff was affirmed by the Court of Civil Appeals (286 S. W. 330), and defendant brings error. Affirmed.

D. E. Bradshaw, of Omaha, Neb., H. W. Pitkin, of Des Moines, Iowa, Burney Braley, of Fort Worth, and Locke & Locke and J. A. Wickes, all of Dallas, for plaintiff in error.

Power, Estes & Kelly, N. A. Dodge, and Jno. W. Baskin, all of Fort Worth, for defendant in error.

EAGLE, Special Chief Justice.

This suit was instituted in the district court of Tarrant county, Tex., by Mary Boden, wife of Thomas Boden, against the Woodmen of the World, a fraternal beneficiary society, upon a policy of life insurance issued by that society upon the life of said Thomas Boden. It was tried in the district court, resulting in a verdict and judgment for the plaintiff. It was appealed to the Court of Civil Appeals, where such judgment was affirmed. 286 S. W. 330.

This court has granted a writ of error to the Court of Civil Appeals, because it appeared that there is conflict between the decisions of different Courts of Civil Appeals in Texas upon the point of substantive law raised and involved in this case, and hence it was thought well to bring the issue to the Supreme Court for hearing and final determination, not only of the just rights of litigants in the instant case, but also in the interest of uniformity of decision and for the future guidance of all such interested parties.

As the case reaches this court, there is but a single issue to be determined, namely, whether limitation had run upon the cause of action before suit was filed thereon. Upon substantially similar states of fact, different Courts of Civil Appeals in Texas have held differently from each other upon the question of law involved. Pathfinder v. Johnson (Tex. Civ. App.) 168 S. W. 1010; W. of W. v. Robinson (Tex. Civ. App.) 187 S. W. 215; K. of P. v. Wilson (Tex. Civ. App.) 204 S. W. 891; W. of W. v. Piper (Tex. Civ. App.) 222 S. W. 649; W. of W. v. Boden (Tex. Civ. App.) 286 S. W. 330.

The relevant facts of this case are as follows: Thomas and Mary Boden were married and were living together happily, at Fort Worth, Tex. On the 30th day of December, 1908, Thomas Boden, being then a member in good standing, paid for and secured a beneficiary certificate in the Sovereign Camp of the Woodmen of the World, its benefits to accrue to his wife, Mary Boden, in the event of his death. He disappeared from his home and place of occupation on the 24th day of June, 1915. He and his wife had lived happily together for several years. He was a kind and considerate husband. He provided well for his household. He was and long had been steadily employed as a clerk, and earned satisfactory income. He was clerk of his camp of Woodmen. He was a prominent member of a church. He had no financial difficulties. It is shown that, when he disappeared, he left his accounts with both church and camp in perfect order. He was a man of sound character and good habits. He was happy and contented. There is no evidence why he should or would have disappeared of his own accord. He has never since been seen or heard of or from by his family, or relatives or friends, or by any one else so far as the record discloses. He completely and mysteriously disappeared, with no known motive. Although diligent search and inquiry for him have been prosecuted, including advertisements in the society's official organ, no trace of him has ever been found since he left his home on the morning of June 24, 1915, as usual, to go to his daily work.

It was shown and admitted that he had paid all sums due to keep the insurance certificate alive to September 1, 1915. But, failing to make payment of dues on September 1, 1915, the society suspended Boden for nonpayment of dues maturing on that date. He had disappeared more than two months before.

Upon the trial of the case, the court submitted, as a special issue, whether Boden died prior to September 1, 1915, and the jury answered that issue in the affirmative — that is to say, the jury found that he died while the certificate of insurance was still in effect.

The legal position assumed in this case by the society is that limitation began to run at the time of his death, if he be dead, and that, the jury having found, as a question of fact, that Boden died prior to September 1, 1915, the cause of action was barred by the four-year statute of limitations (Rev. St. 1925, art. 5527) long prior to the filing of this suit on June 4, 1924; while the legal position assumed by the plaintiff below is that, as no proof of Boden's death could possibly be made independently of legal presumptions growing out of unexplained absence and particularly of article 5541 of the statutes (Rev. St. 1925) that provides, "Any person absenting himself for seven years successively shall be presumed to be dead, unless proof be made that he was alive within that time," etc., it follows that the statute of limitations did not begin to run until seven years had passed after his disappearance, in which case the suit was filed in due time. Thus the issue arises and is presented for determination. The only question before us is whether the cause of action was barred when this suit was filed; and that depends upon the question whether the cause of action accrued at the date of Boden's death as determined by the jury, as the society contends, or seven years after his disappearance, as the plaintiff contends.

This kind of a case may properly be called a "disappearance case." A person leaves his home and family to go about his usual daily calling, and is never again heard of. No actual, positive, and final proof is, or even can be, made that he is dead. It is not shown that he went into any place or position of peril, and it is affirmatively shown that, at the time of his disappearance, he was sound in mind, body, and estate. Such occurrences have been very common, as shown by great numbers of adjudicated cases, throughout the course of judicial history; and, in effort to do justice, the law governing the fact and the time of the death of such class of persons has had extended interpretation and development by the courts of this and other countries, this and other states. It is a proper province of the law to interpret human relationship, and to modify, enlarge, and develop with the changing conditions of human affairs.

When no actual, positive proof of death, at or after...