Travelers Ins. Co. v. Bancroft

• Decision Date: 11 August 1933
• Docket Number: No. 709.,709.
• Citation: 65 F.2d 963
• Parties: TRAVELERS' INS. CO. v. BANCROFT et al.
• Court: U.S. Court of Appeals — Tenth Circuit

65 F.2d 963 (1933)

TRAVELERS' INS. CO. v. BANCROFT et al.

No. 709.

Circuit Court of Appeals, Tenth Circuit.

July 7, 1933.

Rehearing Denied August 11, 1933.

Richard K. Bridges, of Tulsa, Okl. (Randolph, Haver, Shirk & Bridges, of Tulsa, Okl., on the brief), for appellant.

Park Wyatt, of Shawnee, Okl. (Byron Lamun, of Shawnee, Okl., on the brief), for appellees.

Before COTTERAL and McDERMOTT, Circuit Judges, and JOHNSON, District Judge.

JOHNSON, District Judge.

On February 23, 1922, the Travelers' Life Insurance Company issued a life insurance policy for $5,000 to Allen C. Bancroft payable to the executors, administrators, or assigns of the insured; his daughters Alleen and Alice were later substituted as beneficiaries. On July 24, 1922, the Travelers' Life Insurance Company issued a second life insurance policy to Allen C. Bancroft for $5,000 payable to the executors, administrators, or assigns of the insured. On December 1, 1930, Alleen Bancroft being then nineteen years of age, and Alice Bancroft being then fourteen years of age, by her next friend Mrs. J. E. Cullum, commenced an action in the state court of Oklahoma to recover upon the policy dated February 23, 1922, in which they were named as beneficiaries. At the same time Mrs. J. E. Cullum as administratrix of the estate of Allen C. Bancroft, deceased, commenced an action in the same court to recover upon the policy dated July 24, 1922. These suits were removed to the court below by the defendant insurance company. At the trial the two suits were consolidated and tried as one case. Plaintiffs had judgment. The insurance company has brought the cases to this court for review. In each of the policies the insurance company agreed to pay immediately on receipt of due proof of the death of the insured during the continuance of the contract. The policy dated February 23, 1922, lapsed October 22, 1923, through the failure to pay the premium theretofore due; the policy dated July 24, 1922, lapsed for the same reason on March 24, 1924. It is alleged in both complaints that Allen C. Bancroft died on the 11th day of August, 1923. It is then set out in some detail that on that day the insured disappeared from his home in the city of Tulsa, state of Oklahoma, and was never thereafter heard from. It is alleged that plaintiffs furnished the defendant with due proof of the death of the insured Allen C. Bancroft by evidence of his disappearance and his absence from his home unheard from for seven years. In its answer to each complaint the defendant denied the insured died on August 11, 1923; denied that the policy sued upon was in force and effect at the time the alleged cause of action accrued; denied that plaintiffs furnished proof of death within a reasonable time after the alleged death of the insured, and alleged plaintiffs for that reason were estopped to maintain the action; alleged that the action was barred by the provisions of section 185 Compiled Oklahoma Statutes for 1921. When plaintiffs rested, the defendant demurred to the evidence on the ground that it was insufficient to sustain the cause of action alleged in the complaint in each of the cases on trial. The demurrer was overruled and exception taken. The defendant thereupon rested without the introduction of testimony and moved the court to direct the jury to return a verdict in each case in favor of the defendant and against the plaintiffs. No grounds for this motion are stated in the record. The motion for a directed verdict in each case was overruled by the court and exception taken.

In addition to the two rulings of the trial court above noted two other rulings made during the course of the trial are brought up for review. The two latter relate to the admission in evidence of certain written documents hereinafter referred to. Objections and exceptions were duly made and taken at the time.

As above stated the answer of appellant in each of the cases contains a plea of estoppel and a plea of the statute of limitations. These will now be disposed of. Appellant's brief contains no argument in support of the plea of estoppel and the plea for that reason will be given no consideration. In support of the plea of the statute of limitations appellant has cited Harrison v. Masonic Mutual Benefit Society, 59 Kan. 29, 51 P. 893, and Kauz v. Great Council, I. O. R. M., 13 Mo. App. 341. The reasoning of these cases is not convincing. The sounder view and better reasoning are, we believe, found in Benjamin v. District Grand Lodge, No. 4, I. O. B'nai B'rith, 171 Cal. 260, 152 P. 731, 732. The court in that case said: "The cause of action, according to respondent's theory, did not arise upon the death of Benjamin, but when evidence of his death was furnished, and plaintiff had no satisfactory evidence of the fact of death to present to the defendant until after the lapse of seven years from the disappearance of the insured. We see no logical escape from this reasoning. * * * Having established that fact by the presumptive force of the passage of the requisite time, it became necessary to determine whether the death of Mr. Benjamin occurred before or after the date of the cancellation of his certificate for non-payment of dues. The jurors were instructed, in effect, that unless the plaintiff had established the fact of Benjamin's death occurring prior to the date of the forfeiture of the rights asserted under the terms of the certificate, their verdict should be in favor of the defendant. They were also informed that the establishment of death by the presumption upon which plaintiff depended did not fix the time of death at any particular moment of the seven years, but only established the fact of death at some time during that period. These instructions gave to the jurors the proper issues upon which to found their verdict."

The Supreme Court of California in that case denied the contention now made by appellant upon the authority of the case cited from the Supreme Court of Kansas in respect to which the California court said: "With all due regard for the learned Supreme Court of Kansas, we are unable to agree with the conclusions reached in the cited case." We think the California court was right.

The evidence in the case disclosed that on August 11, 1923, the insured was taken by his brother-in-law from his home in Tulsa, Okl., to the railroad station in that city for the ostensible purpose of making a business trip to the state of Missouri; that the insured was never seen again by any one after his separation at the station from his brother-in-law. After the end of seven years from the date of his disappearance, the beneficiaries made proof of death by setting up such disappearance and absence unheard from for the period of seven years, and commenced these actions to recover upon said policies. It is the contention of appellees that the insured committed suicide on August 11, 1923, the day of his disappearance, probably by plunging into the quicksands of the Arkansas river.

The evidence discloses that at the time the policies were written the insured was a contractor engaged in bridge construction. About two years before he disappeared his wife had died leaving the two children above named. At the time of his disappearance Alleen the elder was nine years old and Alice four. After the death of his wife he became despondent and morose in his association with friends and acquaintances; his mind seemed to be affected; he became involved in a business way; his home was heavily mortgaged and at the time of his disappearance he was having difficulty in meeting his current bills; however it was the opinion of his bookkeeper that had he remained and given personal attention to his affairs he would have been able to carry on and meet his obligations. While despondent and morose in his association with friends and acquaintances it was noted that he became, after the death of his wife, more devoted to his children; he converted a room of his home into a business office apparently for the purpose of being with his children and having them under his immediate oversight; he personally attended their wants. After his disappearance two writings signed by him, in his handwriting except the letterheads, under date of August 4th, were found in his desk at his home. These writings were as follows:

"A. C. Bancroft Phone Osage 9788

"Contractor

"Address P. O. Box 210

"Metal and Concrete Bridges and Concrete Pavement

"Rooms 211-212 Lorton Building

"A. C. Bancroft "P. S. Stover Tulsa, Okla., Aug. 4th, 1923.

"I would like if possible for Dr. and Mrs. J. E. Cullum to take charge of the girls Alleen and Alice and also any money that may come to the girls, said money to be used to care for and educate them also they (the Cullums) and the girls to have the furniture and everything in the house pertaining to the home. P. S. Stover my bookkeeper knows more about my business affairs than any one else so would like for him to settle same if possible. Resp. A. C. Bancroft. This is the only way I see to keep from dragging my babies through a life of poverty and want."

"A. C. Bancroft Phone Osage 9788

"Contractor

"Metal and Concrete Bridges and Concrete Pavement.

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