Tillotson v. Travelers' Ins. Co.

• Decision Date: 13 May 1924
• Docket Number: No. 23859.,23859.
• Citation: 304 Mo. 487,263 S.W. 819
• Parties: TILLOTSON v. TRAVELERS' INS. CO.
• Court: Missouri Supreme Court

263 S.W. 819

304 Mo. 487

TILLOTSON v. TRAVELERS' INS. CO.

No. 23859.

Supreme Court of Missouri, in Banc.

May 13, 1924.

Motion to Modify Judgment Denied July 3, 1924.

1. Insurance 646(6)—Burden on beneficiary to prove death and cause thereof to have been by external violence and accidental means.

In suit on accident policy for death of insured, burden of proof was on plaintiff throughout to prove that insured was dead, and that his death was caused by external violence and accidental means, and was caused accidentally by drowning as alleged.

2. Death 2(1)—Insured not absent for seven years presumed alive.

Where seven years had not expired since insured's disappearance and he was last heard of, he is presumed to be still alive; there being no legal presumption of death merely by lapse of time prior to expiration of seven years.

3. Insurance 665(5)—How accidental death by drowning proved stated.

To constitute proof of accidental death by drowning, there must be substantial evidence that insured accidently fell into water and was drowned, or that he `was murderously assaulted and thrown into the water and drowned.

4. Insurance 665(5)—Evidence insufficient to show accidental drowning.

Evidence held insufficient to show accidental drowning within accident policy.

5. Insurance 465, 646(7)—Suicide in absence off insanity not "accidental death"; suicide not presumed.

Suicide in absence of insanity would not be "accidental death" within policy providing for death through external violence and accidental means, and, moreover, will not be presumed.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Accident —Accidental.]

6. Insurance 665(5) — Evidence held insufficient to show murderous assault.

Evidence held insufficient to show that insured was murderously assaulted and thrown into the river and drowned within accident policy.

7. Insurance 668(11)—Proof of corpus delicti necessary to show insured was murdered.

In suit on accident policy, substantial evidence was required that dead body was found and identified as insured before charge that he was murdered was sufficiently sustained by evidence for jury.

Woodson, dissenting.

Appeal from Circuit Court, Buchanan County; Thos. B. Allen, Judge.

Action by Vickie L. Tillotson against the Travelers' Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed.

Mosman, Rogers & Buzard, of Kansas City, for appellant.

Culver, Phillip & Voorhees, of St. Joseph, for respondent.

SMALL, C. I.

Suit on an accident policy for the death of plaintiff's husband for the sum of $10,000, the amount of the policy. There was judgment for the amount sued for from which defendant appeals. The policy was issued April 21, 1919. The plaintiff was the wife of William L. Tillotson, the assured, and the beneficiary in the policy. The policy provided that the amount thereof should be paid to the beneficiary upon the death of the assured during the life of the policy, which was for one year from its date, in the event the assured should die "from bodily injuries affected directly and independently of all other causes through external violence and accidental means." The petition further alleged that "on the 30th day of August, 1919, while said policy was in full force and effect, said William L. Tillotson, deceased, lost his life and died at St. Joseph, Mo., from bodily injuries, affected directly and independently of all other causes through external violence and accidental means, to wit, by drowning in the Missouri river." The plaintiff had property and money amounting to about $18,000 at the time of the marriage, which she had when Tillotson disappeared. He never used or lost any of it. Tillotson, when he married, had some property, a ranch of about 600 acres in Wyoming, and a considerable estate, which he had inherited from his mother. But he lost most of his property or lived it up before the policy sued on was taken out. His last business or employment before his disappearance was managing the real estate department of a bank or trust company in Denver. When he disappeared, and for some time before, he had a third interest in a fund of $70,000, the income of which he held in trust for his aunt, who was 85 or 86 years old, and at her death the principal became the absolute property of himself and his two sisters in equal shares. In May, 1919, Tillotson had to his credit, in the bank at Denver, between $2,300 and $2,400 of his own. He afterwards gave $700 of this to his wife. He was a man of 42 years of age. There is no evidence he ever threatened suicide. Ills health was good, and his family relations were pleasant. In that month, May, 1919, he and his wife and daughter by her first husband took a trip, he paying the expenses, she returning a substantial part of the $700 he had given her near the end of the trip. They went South, visiting some of Mrs. Tillotson's relatives, and from thence East to visit relatives of the assured. They remained about three months, when they started west and stopped at St. Joseph, Mo., on August 20th, where they visited at "the old Col. Gates' home." Mrs. Tillotson was a granddaughter of Colonel Elijah Gates. On August 30, 1919, the wife and her daughter, Helen, went to Kansas City on the 11:30 a. m. interurban train. Tillotson accompanied his wife to the station, with Burr McCarthy, his wife's nephew. Tillotson and McCarthy, after the train left, went to a nearby drug store and bought some cigars and cigarettes, where Tillotson used the telephone (but to whom he was talking or intended to talk to does not appear), and then returned to the Gates home for the midday meal. Tillotson left after dinner about 1:30 p. m., and was never seen thereafter. He and his wife had planned to return to Denver the next Sunday or Monday night, after her return from Kansas City. After his disappearance, his account as trustee of the $70,000 was intact. He had $855 in bank to his credit, as such trustee, subject to his check. He owed about $650. At the time of his disappearance he had a $20,000 life insurance policy, which had been taken out seven or eight years before, which had a loan value of $1,600 or $1,700. He had a paid-up policy of life insurance for $5,000, more than 22 years old, which had a loan value of $2,500, and on which he had obtained a small loan from the company. He also had a $5,000 policy, taken out 3 years prior to 1919. He had about $600 or $700 with him, when he disappeared, besides a gold watch and personal jewelry. On cross-examination of one of plaintiff's witnesses it was shown that these three life policies had been paid to Mrs. Tillotson, the beneficiary of them, she having given satisfactory bond, with security, conditioned that she would repay the money, if Tillotson "turned up" in seven years.

Shortly after 2:15 p. m. on the same afternoon Tillotson disappeared, Hape, a Union Terminal track walker, patrolling the railroad track along the bank of the Missouri river in the railroad yards at the foot of Locust street in St. Joseph, found a hat, coat, and trousers and a pocketbook containing no money, which was afterwards identified as belonging to Tillotson, and which he had on his person when he left the Gates' home about half or three-quarters of an hour before. These articles were found between the railroad track and the water's edge, and some on the rocks which riprapped the river bank. The coat and trousers were considerably torn in places, and the necktie had been ripped apart.

The track walker Hape's testimony was substantially as follows: On the afternoon of August 30, 1919, he found a pocketbook, hat, and coat, also a tie and a cigar, on the river bank, halfway between the railroad track and the rock dike. He did not notice the time when he stopped there, but did when he left, and it was 2:15 p. m. He looked at his watch as he went away. He had stopped there probably 10 minutes. The tie was on the rock dike, the hat 4 to 6 feet north of the coat, and the coat 6 to 8 feet from the rocks. The tie was on the rocks west of the coat, about in the middle of the dump. It had been torn to pieces, as though it had been jerked off the neck. The piece around the neck was broken, but it was all there, and remained tied. The witness opened the pocketbook to examine its contents. He found some receipts and business and lodge cards of different kinds. " Tillotson's name was on the cards. The cards and papers found were not all in the pocketbook, some were scattered about on the ground. One of the cards was a certificate of registration in the draft for the World War; one was a receipt for dues paid to a Masonic order. The place where he found these articles was about the foot of Locust street. These articles were all introduced in evidence, after being identified by the witness as those he found on the river bank. The coat and trousers were badly ripped, and the necktie also, when he found them, and in the same condition as when shown to witness at the trial. A cigar was near the necktie on the rocks. Two men followed him down to where he discovered these articles. He did not know them. They looked around at him, and said they would not have anything to do with it, and went on south. He did not see them any more. Cross-examination: These two men looked like they were laboring men. They said they were going across the river to get a job. He saw the coat and hat about 10 or 12 feet west of the railroad tracks. The bank of the river was about 30 feet from the tracks at that place. There were bushes growing on the bank, pretty thick at that time. Nothing was hanging on the weeds or bushes. He examined the bank and the weeds to see whether anybody had been in there or not—to see if he could see anything of anybody going over this rock business, over the bank. He saw no sign, nor anybody going through the weeds, except where he saw the articles. They were in a small bare place, where there was not...