United States v. Robertson

• Decision Date: 27 October 1930
• Docket Number: No. 6141.,6141.
• Citation: 44 F.2d 317
• Parties: UNITED STATES v. ROBERTSON.
• Court: U.S. Court of Appeals — Ninth Circuit

44 F.2d 317 (1930)

UNITED STATES v. ROBERTSON.

No. 6141.

Circuit Court of Appeals, Ninth Circuit.

October 27, 1930.

George Neuner, U. S. Atty., and Chas. W. Erskine and Francis E. March, Asst. U. S. Attys., all of Portland, Or., and William Wolff Smith, Gen. Counsel, U. S. Veterans' Bureau, and Lawrence A. Lawlor, Atty., U. S. Veterans' Bureau, both of Washington, D. C.

Ralph H. King, McCamant & Thompson, and Elton Watkins, all of Portland, Or., for appellee.

Before DIETRICH and WILBUR, Circuit Judges, and WEBSTER, District Judge.

WILBUR, Circuit Judge.

Appellee brought this action on a policy of war risk insurance issued to Edward H. Robertson, who entered the military service of the United States in Detroit, Mich., in September, 1917, and was discharged at Camp Custer, Mich., January 21, 1919. The policy lapsed for nonpayment of premium on the 1st day of March, 1919, no premium thereon having been paid after the date of discharge. It is alleged that the insured died before the 1st day of March, 1919, when the policy lapsed. The verdict and judgment were in favor of the claimant, and the government appeals.

It is contended on appeal that motion for directed verdict should have been granted on the ground that plaintiff failed to prove the death of the insured before March 1, 1919. Appellee relies largely upon the presumption of death arising after an absence of seven years and from the claim that the actual time of death after the lapse of that period is a question for determination of the jury, and the findings of the jury that the insured died before the 1st day of March, 1919, is supported by the evidence and the presumption. Before discussing the law applicable to the case we will state, as briefly as may be, the nature of the evidence thus relied upon by the appellee, who was the mother of the insured.

The insured was born May 4, 1894, at Akron, Iowa. When he was four years of age the family moved to Vancouver, Wash., and a few months later moved to Toledo, Wash., where they lived about four years. The family moved back to Vancouver, Wash., where they lived for six years, during which time the father of the insured died; the mother then moved with her son, the insured, to Gilmore Valley, Wash., where the mother took up a homestead. The elder sister had married in the meantime and her husband, Harold M. Brown, had taken up a homestead near there. The insured remained on the homestead until 1912. His mother moved to Woodburn, Or., in that year, leaving her son on the homestead. She later moved to Portland, Or., where her son visited her in 1913. He remained in Portland a few weeks in the Pullman yards, then went to another place in Oregon, where he worked for a short time, and then came back to Portland, Or. He then removed to Sacramento Valley, Cal. He worked at Celilo Locks in 1913, after he had been in Fresno, Cal. The insured wrote to his mother irregularly, once a month or six weeks, while he was working at Celilo Locks. Afterwards he came to Portland and visited his mother. He was in Portland for about a month. He visited some other place in Oregon not designated for two or three weeks and then returned to Portland and then went to California, near Fresno, in 1914. While in Fresno his mother heard from him "every three or four or six weeks, something like that." He also sent his mother some money in his letters, she says, "not much, $5 or $10." His mother continued to hear from insured until the latter part of 1916. She testified: "The last time I heard from him was in the latter part of 1916, in the fall." The mother explains her failure to hear from her son after 1916 by the statement that she told her son she was going to her daughter's in Canada, and that she did leave Portland in 1916 and went to her daughter at Condon, Or., to which place the daughter had removed. She received a letter from her son when she was in Condon, Or., which had been addressed to her at Portland. She had told her son to send his letters to Portland. The mother was taken sick and went to Woodburn, Or., to some friends. While the mother was at Woodburn she wrote her son that her daughter was coming back from Canada, but this letter was returned. The letter received by the mother at Condon, Or., was postmarked the 1st part of December, but was received two and one-half or three months afterwards. The mother continued to live in Condon with her daughter from November, 1916, until the winter of 1919, in February. After the return of her letter written to her son from Woodburn, the mother wrote him again from Condon, but this letter was addressed to her son in Fresno and was also returned to her. "From 1917 to January, 1919, I didn't have any word from my son." It thus appears that as early as the latter part of 1916 the mother and son had lost contact with each other and the contact was never thereafter re-established. In 1919 the mother wrote to the War Department about him and in the same year her son-in-law's sister wrote her that her son had visited her. In this letter Mrs. Weeks stated that the son had asked for his mother's address and told her that he thought his mother was in Canada. Mrs. Weeks gave him the mother's address and he told Mrs. Weeks that he was going east. The mother remained in Condon until February, 1919, when she came to Portland, doing housework. The insured's sister and husband lived in Condon two and one-half years after the mother left there. The mother testified that she wrote to the War Department asking about her son's discharge, to the postmaster at Fresno, Cal.; and that she obtained a list of all the members of his company at the time they were stationed in Powers, Or., and wrote to every one of them. These letters were written in 1929, the members of the company were scattered from Ohio to California. She received twenty-five answers from persons who stated they were members of the 102d Spruce Squadron. In these letters they either stated they were not with the company at Powers, Or., or that they had never heard from the insured after his discharge. Seventeen letters written to members of the company were returned unclaimed. The mother testified that she had not heard a word directly or indirectly from her son since the message from Mrs. Weeks in January, 1919; that during the time her son was away at the various places mentioned she received a letter from him every four to six weeks up to 1916. The mother testified that she never had any trouble with her son and that he was an affectionate son. "When he was not away at work at some of these jobs he stayed in Portland and was with me in the day time, but I was working and he had a room over town." From 1910-12 the insured maintained his home with relatives of his in Washington on a homestead. She testified that in 1910 to 1916 her son came to see her every time he was in Portland, but did not live with her as she was working and did not have a home. She had not seen her son since 1914. The War Department informed her her son had enlisted at Detroit, Mich. The last place of residence the mother knew that her son maintained was in the state of California.

The witness, Orpha Weeks, a sister of the son-in-law of Mrs. Robertson, testified that the first time she had seen the insured after 1913 was in 1919, when he came into her husband's office in Vancouver, Wash., which was within half a mile of Vancouver barracks; that he then asked after his folks and asked for his mother's address, which she gave him; that he then stated he was going away that night to be discharged at Camp Custer, Mich. He said he would return to Condon immediately after his discharge. He was there only fifteen minutes and said this was the only leave he could get in the Army. "He asked me how to reach Condon, saying he was coming back by way of Spokane, and I informed him to transfer at Arlington, Oregon." The witness told the insured that she expected to go to Condon in a month, to which he replied, "Well, I will see you then." The insured told Mrs. Weeks that he lived at Fresno, Cal.; that he was going back there after he made his mother a visit.

The insured's only sister, Mrs. Harold M. Brown, testified that her brother showed affection toward his mother and was friendly toward all the family when he visited them; that he gave his mother money while here on visits; that he sent money to his mother to fix up his father's grave, and that he had given her money at various times. The sister testified that they did not hear directly or indirectly from the insured after the month of January, 1919. The sister testified that her brother never wrote to her, but that she learned of her brother from her mother. In February or March, 1919, a letter was received at the Condon post office addressed to the insured in care of Mrs. Ida M. Robertson, Condon, Or. This letter was from the War Department and contained a sergeant's commission in the 102d Spruce Squadron, United States Army, dated January 14, 1919, but fixing the date of his rank as such as the 23d day of November, 1918. The witness testified that since 1919 she had never heard a word, directly or indirectly, from the insured.

John M....