The Modern Woodmen of America v. Ux

• Decision Date: 09 December 1905
• Docket Number: 14,332
• Citation: 82 P. 1100,72 Kan. 391
• Parties: THE MODERN WOODMEN OF AMERICA v. JOSEPH GERDOM et ux
• Court: Kansas Supreme Court

82 P. 1100

72 Kan. 391

THE MODERN WOODMEN OF AMERICA v. JOSEPH GERDOM et ux

No. 14,332

Supreme Court of Kansas

December 9, 1905

Decided. July, 1905.

Error from Shawnee district court; Z. T. HAZEN, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. FRATERNAL INSURANCE--Seven Years' Absence--Presumption of Death. In order that the presumption that a person once shown to have been alive continues to live may be overcome by the presumption of death arising from seven years' unexplained absence from home or place of residence, there must be a lack of information concerning the absentee on the part of those likely to hear from him, after diligent inquiry.

2. FRATERNAL INSURANCE--Lack of Information Necessary to Raise the Presumption. The inquiry should extend to all those places where information is likely to be obtained, and to all those persons who in the ordinary course of events would be likely to receive tidings if the party were alive whether members of his family or not; and in general the inquiry should exhaust all patent sources of information, and all others which the circumstances of the case suggest.

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

Webb McNall, A. B. Quinton, and E. S. Quinton, for defendants in error.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.:

Joseph Gerdom and Anna Gerdom sued the defendant, a fraternal society, upon a beneficiary certificate issued on August 26, 1890, to John B. Gerdom, one of its members, and containing the following recital:

"Neighbor John B. Gerdom . . . is, while in good standing in this fraternity, entitled to participate in its benefit fund to an amount not to exceed $ 2000, which shall be paid at his death to his father and mother, Joseph and Anna Gerdom, equally."

The petition, which was filed on March 16, 1904, alleged, among other things, that on August 15, 1895, John B. Gerdom left his father's house in the city of Topeka, Kan., which was his home, and started for the state of California; that he sent letters home to his father and the family until December, 1895, when nothing more was heard from him; that in August, 1896, Joseph Gerdom sent letters of inquiry to California and received an answer from an employer of John B. Gerdom that the last information received concerning him was in May, 1896; that plaintiffs had made diligent search for their son, but had been unable to find him or to hear of him since the date last mentioned. In view of these facts the petition asserted that John B. Gerdom died on or about May 31, 1903.

At the trial the defendant demurred to the plaintiffs' evidence. After an adverse ruling it elected to stand upon its demurrer, and from a judgment in favor of the plaintiffs it prosecutes error. The principal questions argued relate to the sufficiency of the evidence to establish the death of John B. Gerdom, to the identity of the beneficiaries under the certificate, and to the insurable interest of the plaintiffs in the life of the assured, it being admitted that Joseph Gerdom is in fact the stepfather of John B. Gerdom.

For the purpose of establishing the fact that they had made proof of loss according to the requirements of the society, the plaintiffs introduced in evidence certain letters which had formed a part of the proof of loss submitted to the society before the action was commenced. These letters purport to have been written by John B. Gerdom to his sister, his "folks" and "friends," from Denver, Colo., and from Oakland, Cal. The earlier ones from California express a desire to come home, and ask that money be sent to him for that purpose. Later ones indicate that he obtained satisfactory employment in the Tribune office at Oakland. All of them give personal accounts of himself and express interest in the welfare of the persons to whom he wrote. The last one, which was dated at Oakland, Cal., on December 15, 1895, states that he is in good health, and indicates an intention to remain there for a while, because, as he says, the more he looks around the more he likes it.

In connection with the same branch of the case, a letter from the publishers and proprietors of the Oakland Tribune, dated August 28, 1896, and addressed to the plaintiff Joseph Gerdom, was introduced. This letter purports to reply to an inquiry relating to John B. Gerdom, states that he left the employ of the Tribune in February, 1896, but remained in Oakland for some time afterward, when he went first to Stockton and then to Merced, Cal., and that he left the last-named place with the statement that he was going back to Kansas City.

When these letters were admitted in evidence it was understood by court and counsel that they were offered as a part of the proof of loss. After they had been read the court made the following statement to counsel, and asked the following questions of Joseph Gerdom, who was then on the witness-stand:

"The court: I am not sure whether this proof, in relation to these letters that have been introduced in evidence as being a part of the proof of loss--whether they can be used for the purpose of proving another fact or not, and, therefore, I want to inquire about that, so there will be no question about it. Did you hear anything from your son except as appears in these letters? Ans. Not a word; no.

"The court: Had any information at all? A. No, sir; not at all."

Further evidence disclosed that two brothers and a sister of John B. Gerdom were living in Topeka at the time of the trial. The remainder of the plaintiffs' proof consisted of evidence that John B. Gerdom was a single man, and that the defendant itself had advertised for him widely and unsuccessfully, after the suit had been commenced.

It is plain that the court could not, over seasonable objection, rightfully consider the letters referred to except for the single purpose of ascertaining if the preliminary steps had been taken to fix the defendant's liability. (Commercial Travelers v. Barnes, ante, p. 293.) But there is fair ground upon which to contend that the court did disclose a purpose to consider the letters and their contents, at least as a starting-point in the evidence upon the main issue, and that counsel for the defendant interposed no objection to the court's so doing. The matter is by no means clear, but for the purposes of this decision the record will be so interpreted. But, after making this concession, the court is unable to discover in the record sufficient evidence to support the allegations of the petition.

From the foregoing statement it is apparent that the substantial question under the pleadings and the evidence is, not if there is some evidence of death, but if those facts are established which the law insists must be proved in order to overcome the presumption of continued life. It is true that death may be proved by circumstantial evidence, and that absence for a considerable period of time is not indispensable in order to generate a satisfying conviction of the fact. (13 Cyc. 290, title "Death.") But in all such instances the death of the absent party must fairly be demonstrated by the circumstances of the disappearance. If, for example, in connection with other facts showing a want of motive for absence it should appear that the missing person was on a vessel which foundered, or a train which was wrecked, or engaged in some hazardous enterprise, or met with an accident which might be expected to result fatally, or was exposed to perils incompatible with his age or the state of his health, or was afflicted with a fatal disease, or was mentally infirm, or was suicidally inclined, belief in the fact of death might be forced upon the mind very soon after the disappearance. And in some cases the age, health, disposition, moral character, domestic relations, social rank and financial condition of one who suddenly disappears may themselves, without the aid of other circumstances, stifle all doubt that the person is dead. Such at least is the view of most of the courts of last resort, although the supreme court of Louisiana, in a case of absence apparently quite inexplicable except upon the assumption of death, very prudently...