The Modern Woodmen of America v. Ux

• Decision Date: 07 March 1908
• Docket Number: 15,229
• Parties: THE MODERN WOODMEN OF AMERICA v. JOSEPH GERDOM et ux
• Court: Kansas Supreme Court

94 P. 788

77 Kan. 401

THE MODERN WOODMEN OF AMERICA v. JOSEPH GERDOM et ux

No. 15,229

Supreme Court of Kansas

March 7, 1908

Decided January, 1908.

Error from Shawnee district court; ALSTON W. DANA, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. DEATH -- Seven Years' Unexplained Absence -- Presumption. The rules of law stated on the former hearing of this case are reaffirmed.

2. DEATH -- Evidence. The evidence of additional inquiries for the missing man, the widely extended publication of an offer of reward for information concerning him, the notoriety of this prolonged litigation, and the further lapse of time, were proper matters for consideration in determining whether death should be presumed.

3. DEATH -- Conclusive Proof Not Required. While the parents were bound to exercise reasonable diligence in their search, they were not required to prove conclusively that he was dead; they were only bound to produce such evidence as would fairly lead to this presumption.

Truman Plantz, and D. C. Tillotson, for plaintiff in error.

Webb McNall, and Quinton & Quinton, for defendants in error.

OPINION

BENSON, J.:

This action is again before this court for review. (Modern Woodmen v. Gerdom, 72 Kan. 391, 82 P. 1100, 2 L. R. A n. s., 809.) On the second trial additional evidence was heard, and the plaintiffs, Joseph Gerdom and wife, again recovered. The defendant insists that the evidence is still insufficient, and asks for a reversal.

The evidence shows that John B. Gerdom, an unmarried man about thirty years of age, working in a newspaper office at Topeka, and residing with his parents in that city, left his home on October 14, 1895, to go to California. He was a member of the defendant society, which had issued to him a benefit certificate in 1890, which was payable to his parents, the plaintiffs, and which was in full force. Soon after leaving his home he wrote to his father from Denver, Colo., and on October 22 he wrote another letter, at Oakland, Cal., and wrote again on the 29th of that month. These letters indicated dissatisfaction, and a desire to return to his home. Later, in November and December of that year, he wrote letters to his sister at home, saying that he liked the country better and would remain a while. His last letter was dated December 15, 1895, giving his address as Oakland, care of the Oakland Tribune . He was then at work in the office of that paper. This was the last word from John B. Gerdom received by any member of his family.

Inquiry was made of some of his friends and associates, but no information was received. On August 22, 1896, the father wrote to the Tribune, at Oakland, Cal., inquiring about his son, and was informed that he left the employment of that paper in February of that year for Stockton, Cal., accompanied by a boy from the same office, and that this boy, who had returned, reported that Gerdom had gone on to Merced, in that state, but had told the boy that he intended returning to Kansas City. The writer added that he could find no one at Oakland who had heard of Gerdom since. The deposition of the writer was taken confirming the information contained in the letter; also stating that the boy referred to had quit the service of that paper, and that it was reported in the office that he had been killed, and that the witness had read a newspaper report of his death. The testimony of newspaper men at Merced was also taken tending to show that Gerdom had not worked in any printing office there and was unknown to the people engaged in that business. Inquiry was also made at the principal newspaper offices in Kansas City, but no information was obtained of his presence in that city at any time. The family consisted of four children besides John, all adults, and the father and mother. Two of these reside in Kansas City. On consultation the members of the family residing in Topeka were informed by those in Kansas City that they had not seen or heard of John since he left Topeka.

The defendant society published, in 1904, an advertisement for the missing man in the Modern Woodmen, a paper having a circulation in the United States of 700,000 copies, giving a description of Gerdom, with his picture, and offering a reward of $ 50 for information that would lead to his being found. The general attorney for the Woodmen, who caused the publication of this notice, testified that Gerdom had not been found, but that information had been received that he was seen in California within two years preceding the trial. This paper was mailed to every member of the order, nearly 700,000, of which number over 8000 resided in California, nearly 300 of whom lived in Oakland, and 55 in Merced.

All assessments upon the benefit certificate were...