Tobin v. United States Railroad Retirement Board

• Decision Date: 09 February 1961
• Docket Number: No. 14241.,14241.
• Parties: Marguerite T. TOBIN and Kathryn M. Tobin, an incompetent, by Marguerite T. Tobin, her next friend, Petitioners, v. UNITED STATES RAILROAD RETIREMENT BOARD, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

286 F.2d 480 (1961)

Marguerite T. TOBIN and Kathryn M. Tobin, an incompetent, by Marguerite T. Tobin, her next friend, Petitioners, v. UNITED STATES RAILROAD RETIREMENT BOARD, Respondent.

No. 14241.

United States Court of Appeals Sixth Circuit.

February 9, 1961.

Jon R. Waltz, Cleveland, Ohio (Walter E. Thayer, Conneaut, Ohio, and James C. Davis, Cleveland, Ohio, on the brief), for petitioners.

Myles F. Gibbons, Gen. Counsel, Railroad Retirement Board, Chicago, Ill. (David B. Schreiber, Associate Gen. Counsel, Railroad Retirement Board, Paul M. Johnson and Richard F. Butler, Chicago, Ill., on the brief), for respondent.

Before MILLER, CECIL and WEICK, Circuit Judges.

CECIL, Circuit Judge.

This case is before the court on petition for review of a decision of the United States Railroad Retirement Board.

The petitioners, Marguerite T. Tobin and Kathryn M. Tobin, an incompetent, by Marguerite T. Tobin, her next friend, are the daughters of Richard M. Tobin, hereinafter sometimes referred to as the employee. He was born on April 20, 1870, and after many years' employment with the Bessemer and Lake Railroad Company, retired on April 20, 1940. He was awarded an annuity under the Railroad Retirement Act of 1937, Title 45 U.S.C.A. § 228a et seq., as amended, in the monthly amount of ninety-eight dollars. This annuity began on April 21, 1940 and on July 1, 1948 was increased to one hundred seventeen and 60/100 dollars.

At the time of his retirement, the employee was living with his wife and daughter Marguerite, in North Bessemer, Pennsylvania. The daughter Kathryn had long been an inmate of the State Hospital, at North Warren, Pennsylvania. On May 22, 1940, he informed the Board of a change of address to 475 State Street, Conneaut, Ohio.

Upon complaint of the daughter Marguerite, he was committed as a paying patient to the Ashtabula County Home, in Kingsville, Ohio, June 19, 1948. He was then seventy-eight years old and according to the complaint had "aged mentally" and "was continuously firing the furnace". She feared for the safety of herself and mother.

On January 4, 1949, the employee's wife died and on the following day the superintendent of the home took him to Ashtabula to view his wife's remains. While being returned to the home, he overpowered the superintendent, jumped out of the automobile and escaped. He was apprehended later the same day by Conneaut police and returned to the county home.

The next day Mr. Tobin left the home, without permission, and was never seen nor heard of again. An intense search was made by police, firemen, the county sheriff, Boy Scouts, and other volunteers, but no trace of him was found. The daughter, in the vain hope of finding her father, hired an airplane and pilot to fly over the countryside at low altitudes, but this produced no result. The Salvation Army, without success, advertised the employee's disappearance in its newspapers. His body was never found and he never communicated with his daughter, the Retirement Board, the home or anyone else. It was reported that a person, answering the employee's description, was observed boarding a bus at a highway intersection near the Ashtabula County Home.

At the time of his disappearance, he had some money in his possession and carried identification on his person. He was "able-bodied," "strong and husky" and "physically very powerful for his age."

On or about November 14, 1950, Marguerite notified a representative of the Board, that she wished to have her father's annuity checks mailed to her address at 625 Buffalo Street, Conneaut, Ohio. She also said that her father had been "missing" since January 6, 1949, and that she had deposited the checks in a joint account of her and her father, at the Citizens Savings Bank, Conneaut, Ohio. In 1951 she told the Board's representative that she had kept the payments in the hope that her father was alive and that he would request a change of address and that she could get in touch with him.

The daughter was instructed on June 4, 1951, to return the payments that had been made from January 1949 to October 1950. No payments had been made after that time. Under date of June 13, 1951, she refunded the payments, as requested, amounting to $2,587.20.

On August 14, 1956, Marguerite, on behalf of herself and sister Kathryn, filed an application for "Lump-Sum Death Payment and Annuities Unpaid at Death." She recited that the employee died July 6, 1956, at an unknown place. She submitted with her application an order of the Probate Court, of Ashtabula County, Ohio, dated July 6, 1956, reciting that the presumption of death had been established. This is in accordance with Section 2121.01 et seq., of Ohio Revised Code.

These claims were successively denied by Bureau of Retirement Claims, April 22, 1957, Appeals Council, June 27, 1958, and the respondent herein, Railroad Retirement Board, June 2, 1959.

Counsel for the petitioners claim that the issues herein are governed by Ohio law, by reason of the rule of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. That case involved diversity of citizenship. The suit now before us is based on a federal statute, is brought in a federal court and is against a federal agency. We do not consider Erie R. Co. v. Tompkins applicable, or that this controversy is controlled by Ohio law. American Textile Machine Corp. v. United States, 6 Cir., 220 F.2d 584, 587.

At common law there was a rule of presumption of death which is briefly and concisely stated in Rice v. Lumley, 10 Ohio St. 596, 598: "When a man leaves his home or usual place of residence, and goes to parts unknown, and is not heard of or known to be living for the period of seven years, the legal presumption arises that he is dead."

It is claimed, on behalf of the petitioners, that the employee must be presumed to be living until the end of the seven years. The respondent claims, first, that he died during the first month of his un-explained absence, and, second, that the burden is on the petitioners to show that the employee was living throughout the period for which they seek recovery.

The Supreme Court, in an early case (1878), recognized the common law rule. In Davie v. Briggs, 97 U.S. 628, 633, 24 L.Ed. 1086, the rule was stated: "The general rule undoubtedly is, that `a person shown not to have been heard of for seven years by those (if any) who, if he had been alive, would naturally have heard of him, is presumed to be dead, unless the circumstances of the case are such as to account for his not being heard of without assuming his death.' Stephen, Law of Evid., c. 14, art. 99; 1 Greenl.Evid., sect. 41; 1 Taylor, Evid., sect. 157, and authorities cited by each author."

It is further stated at page 634 of 97 U.S.: "But that presumption is not conclusive, nor is it to be rigidly observed without regard to accompanying circumstances which may show that death in fact occurred within the seven years. If it appears in evidence that the absent person, within the seven years, encountered some specific peril, or within that period came within the range of some impending or immediate danger, which might reasonably be expected to destroy life, the court or jury may infer that life ceased before the expiration of the seven years."

It has also been held that if the missing person had manifested a strong inclination or purpose to commit suicide, death might be inferred at or about the time of the disappearance. United States v. O'Brien, 4 Cir., 51 F.2d 37.

There is some authority to the effect that if a person had no reason to leave home and every reason to remain at home, death might be inferred from his disappearance. United States v. Hayman, 5 Cir., 62 F.2d 118.

In Mr. Tobin's case, there is no evidence of any apparent peril or danger, no indication that he ever contemplated suicide, and from the facts of the case it would seem that he had every reason to escape from the institution where he was confined. His wife was dead, his daughter Marguerite had caused his confinement in the county home and his daughter Kathryn was in a state hospital with a disease diagnosed as "schizophrenia, hebephrenic type."

The Board's finding that ...