Thetford v. Modern Woodmen of America

• Citation: 273 S.W. 666
• Decision Date: 22 April 1925
• Docket Number: (No. 6817.)
• Parties: THETFORD v. MODERN WOODMEN OF AMERICA.
• Court: Court of Appeals of Texas

273 S.W. 666

THETFORD v. MODERN WOODMEN OF AMERICA.

(No. 6817.)

Court of Civil Appeals of Texas. Austin.

April 22, 1925.

Appeal from District Court, Denton County; C. R. Pearman, Judge.

Action by D. T. Thetford against the Modern Woodmen of America. Judgment for defendant, and plaintiff appeals. Reversed, and remanded for new trial.

Geo. M. Hopkins and Brent C. Jackson, both of Denton, for appellant.

Truman Plantz, of Warsaw, Ill., Geo. G. Perrin, of Rock Island, Ill., and Sullivan, Speer & Minor, of Denton, for appellee.

McCLENDON, C. J.

On June 6, 1910, the appellee, a fraternal beneficiary society, issued to James Bert Thetford, to whom we will refer as Bert Thetford, a benefit certificate for $3,000, payable, on the death of Bert Thetford, to his father, the appellant herein. The application showed that Bert Thetford was born February 14, 1892. He was not married, and lived with his father at his home in Denton county until about September 15, 1913, when he disappeared, having the month previous been indicted by the grand jury of Denton county on three bills charging forgery, and released on bail bonds. All assessments and dues under the certificate were paid up to and including the month of December, 1920, and later appellant made demand upon appellee for payment of the certificate, basing his claim that Bert Thetford was dead upon the presumption of absence for 7 years "beyond sea or elsewhere," as provided in R. S. art. 5707. Thereafter, on March 10, 1922, appellant brought this suit against appellee, seeking to recover the amount of the certificate and the statutory penalty and attorney's fees.

The cause was tried to a jury upon special issues, and, upon the jury finding that Bert Thetford was not dead at the time appellee made the demand for payment, judgment was rendered in favor of appellee. The appeal is from this judgment upon 15 assignments of error.

Assignments numbered 1, 9, 2, 15, 3, 10, 4, 5, and 12 will be first stated and considered in the order named. These assignments predicate error upon the following rulings of the trial court:

(1) In permitting appellant to testify on cross-examination that, after Bert Thetford left home in September, 1913, John Thetford came to appellant's home and stated to him that he left Bert at Blossomville, Miss., running a tractor.

(9) In refusing a special charge to the jury that this testimony "was hearsay, and was improperly admitted, and you will disregard the same in arriving at a verdict."

(2 and 15) In permitting testimony of Ray Goode to the effect that he had seen a man in 1917 in the army whom he believed to be Bert Thetford.

(3 and 10) In admitting in evidence the indictments and proceedings in connection therewith.

(4) In refusing a peremptory instruction in favor of appellant for the amount of the certificate and the statutory penalty and attorney's fees.

(5) In refusing an alternative peremptory instruction in favor of appellant for the amount of the certificate.

(12) In rendering judgment in favor of appellee upon the "legal evidence" adduced.

It will be observed that these assignments relate to the character of evidence admissible, and the sufficiency of the proof, to rebut the statutory presumption of death from 7 years' absence "beyond sea or elsewhere."

There was no controversy as to the following facts: That the certificate was issued as alleged, and all assessments and dues paid thereon up to and including December, 1920; that on September 15, 1913, Bert Thetford was 21 years old, unmarried, in good health, and was living at his father's home in Denton county; that in August, 1913, the three indictments were returned against him; that he was arrested, released on bond, and about September 15, 1913, left home and never returned; that later his bonds were forfeited, and reward was offered for his arrest and return to the officers.

In his examination in chief, appellant testified:

"I last saw Bert Thetford about the 12th of September, 1913. I saw him at home on that day. He said he was going to Fort Worth from here. I have not seen him nor heard of him since that time. I have made inquiry concerning him. I have not heard of him since that time."

His cross-examination, which embodies the testimony objected to, reads:

"I suppose I have talked to young John Thetford. I have talked to him since Bert's disappearance. I haven't heard from Bert. As to whether I told Mr. Hopkins I had not heard from him I will state that I haven't heard from him since. I did hear John Thetford say he was in Mississippi. I did hear John Thetford, his cousin, who I say went at least as far as Argyle with him, say he was in Mississippi, running a tractor on a big plantation. I didn't advertise in any papers in Mississippi for him. I did not go back there. John Thetford told me he traded for Bert's valise, and he had Bert's valise back here, and I saw it. That was after Bert disappeared, when he was under bond for three cases of forgery. Bert got one foot mashed out here at the brickyard and was kind'a crippled."

On redirect examination, he testified:

"John Thetford made that statement to me some 4 or 5 months after Bert left; something like that; I don't know hardly how long it was. John was back here at that time. When he came back, he came to my house first. He did not make a statement to any one else as to where he was. He told me he was in Blossomville, Miss., and the letter I wrote him come back; said there wasn't any such post office. I did not get in communication with him in any way, although I tried to do so. I did not make any other effort to find him. As to what kind of a boy Bert was with reference to staying at home, I will state that he stayed at home all of the time."

We quote in full the testimony of Ray Goode, which was objected to as being insufficient to identify Serg. Parker as Bert Thetford:

"My name is Ray Goode. I am teaching school at Esteline, Tex. My wife lives in Denton, Tex. She lives with my father while I am out teaching. I am 27 years old. I have lived in Denton county about 25 years. I was acquainted with T. B. (Bert) Thetford. I knew him from the time I was 6 or 8 years old. I guess. I have lived in 3 or 4 blocks of him. He was older than I was. I knew him when he worked down at the brick plant. Along about 1917 I was in the army at San Antonio. When I left San Antonio I went to Syracuse, N. Y I was a private in the army. It had been several years prior to 1917 since I had seen Bert Thetford. There was a sergeant in the company I was in. This sergeant was about 6 feet tall, pretty slender, and limped in one leg. He was going under the name of Serg. Parker, but I thought it was Bert Thetford. I thought so then. That was in 1917. I said we went to Syracuse, N. Y., going from San Antonio on a troop train to that place. We came through Denton on that trip. I said I took this sergeant to be Bert Thetford. I did have a talk with this man that I took to be Bert Thetford with reference to what towns were along this line of railway, through Denton. He knew where Denton and Whitesboro were."

Cross-examination:

"I don't know where this Serg. Parker registered from — whether from 1908 Main street, Fort Worth, Tex., or not. I don't know that that was Bert Thetford, nor do I pretend to say that it was Bert Thetford. He was a man that looked like Bert Thetford. He was with the outfit in the army that I was with about 3 months I think. He knew where Denton and Whitesboro were; however, I don't see anything strange about that. There are lots of people who know where Denton and Whitesboro are. I think Whitesboro is a sort of terminal, and I think a good many people know where Denton is located. I think most any person who is intelligent enough to be a sergeant in the army would know where Denton is and where Whitesboro is. During the time I knew Serg. Parker I did not associate with him very much. We were in the same company. In coming from San Antonio through this country I rode with him part of the time. The only thing he knew was where Whitesboro was. I don't know whether he seemed to know any of the people around here or not, as that wasn't mentioned. He didn't inquire anything about the people around Denton. I suppose Bert Thetford naturally knew a great many of the old timers around here. He would have known my father. That man didn't ask me anything about my father. He didn't ask me if I was Jim Goode's boy, nor did he ask me anything about D. T. Thetford. He didn't ask me anything about any of the people who lived around Denton. He merely knew where Denton and Whitesboro were. I can't identify him as being Bert Thetford. I don't think my father was sheriff at that time.

"I said I thought this man was Bert Thetford. The only reason I had to think that was that little resemblance. I did not ask him what his name was. I could not say for sure what color his hair was, but I think that it was pretty gray; however, I would not say for sure about that. I believe his eyes were blue, but I would not say for sure about that. I don't know that I ever noticed or thought anything about his complexion. I believe he was pretty dark though. It is a fact that most of the boys who were in training were tanned up and pretty dark. The boys who came out of stores around town and went into the training camps soon got tanned up to where they were dark. I don't remember which foot that fellow was lame in, but I do remember that he was a little lame in one foot; he limped just a little. I could not say for sure what size man he was. He must have been 6 feet tall and weighed about 165 pounds I should think. He was slender in build. I would take him to be about 33 years old at that time, which was in 1917. I don't think he was younger than 33, although he could have been. I believe he was getting gray-headed. That was about May, 1917. He did not exactly seem like he was under any kind of a strain like he was on the dodge or anything of...