Walsh v. Metropolitan Life Ins. Co.

• Decision Date: 09 January 1912
• Parties: WALSH v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

142 S.W. 815

162 Mo. App. 546

WALSH v. METROPOLITAN LIFE INS. CO.

St. Louis Court of Appeals, Missouri.

January 9, 1912.

1. APPEAL AND ERROR (§ 852)—REVIEW—THEORY OF CASE BELOW.

Where both parties and the trial court treated an action on an insurance policy as founded on the common-law presumption of death, that theory will obtain on appeal.

2. DEATH (§ 2) — PRESUMPTION FROM ABSENCE.

Where insured who had lived with his brothers and sisters enlisted in the army, and, on being sent to Cuba, expressed an intention to return, his unexplained absence for eight or nine years, during which time neither his relatives nor his friends could obtain news of his whereabouts warrants the common-law presumption of death.

3. APPEAL AND ERROR (§ 882)—ERRORS ASSIGNABLE.

A party cannot complain of instructions given at his request.

4. TRIAL (§ 234)—INSTRUCTIONS—BURDEN OF PROOF.

A requested instruction that the burden of proof was upon the plaintiff, but not defining the term, was properly refused.

Appeal from St. Louis Circuit Court; W. B. Homer, Judge.

Action by Michael J. Walsh, administrator of John Walsh, deceased, against the Metropolitan Life Insurance Company. From a judgment for defendant in a justice court, plaintiff appealed to the circuit court, and from a judgment of that court for plaintiff, defendant appeals. Affirmed.

Nathan Frank and M. W. Oliver, for appellant. Bert. F. Fenn, for respondent.

REYNOLDS, P. J.

This action was instituted December 10th, 1908, before a justice of the peace of the city of St. Louis to recover $158 said to be due on a policy of insurance issued August 15, 1892, by defendant on the life of one John Walsh. Letters of administration were issued to plaintiff by the probate court of the city of St. Louis, December 10, 1908. Judgment went in favor of defendant in the justice's court but on a trial in the circuit court plaintiff recovered, the trial there being before the court and a jury. From this judgment, after interposing a motion for new trial as well as in arrest, defendant has duly perfected its appeal to this court. Here the only points made by learned counsel for a reversal are, that "no positive proof has ever been presented of the death of the insured, John Walsh, and that the evidence offered at the trial in the circuit court was insufficient to raise the presumption of his death from his absence of more than seven years." It is admitted that inasmuch as there was no conflict in the evidence, appellant introducing no testimony, "the only question to be decided is its sufficiency and the propriety of the instructions of law given by the court." There was evidence in the case tending to prove that John Walsh, the insured, up to 1898, lived in St. Louis; that he was then a man of 28 or 29 years of age and unmarried; that both of his parents had been dead for many years; that from 1890 to 1898 he had made his home with his brothers or sisters; that for a long time while living in St. Louis he had been a tobacco worker, earning $2.00 per day; that he was a man of cheerful disposition and apparently lived on very brotherly terms with his relatives and had one or more intimate friends in St. Louis. Prior to 1898 he had been a member of the National Guard of this state and in the fall of 1898, apparently having served with that organization in the Spanish-American War, he was discharged from it at St. Louis and at once enlisted in the regular army and was stationed at Jefferson Barracks near St. Louis where he remained for about six months. While his brother and sisters knew he was at the barracks, it does not appear that they had any communication with him in any way while he was there. He went with his company to Cuba in the fall of 1898. He told his relatives and friends in St. Louis before his departure for Cuba, that when his three-year term of enlistment in the regular army expired, he intended to return to St. Louis. His relatives not hearing from him, on writing to the authorities in Washington, were informed that he had been dishonorably discharged from the service of the United States on the 6th of March, 1899. This latter information was obtained by a sister-in-law of John Walsh in answer to inquiry which she made of the War Department at Washington. It does not appear that the relatives advertised the disappearance of John Walsh, or, beyond inquiring of men who had been in service with him at Havana, Cuba, and who had returned to St. Louis, that they had made any very definite search for him.

A witness, who testified to being a lifelong and intimate friend of John Walsh, had made inquiry from two young men who had been with John in Cuba and beyond the fact that he had been discharged from the army in March, 1899, and that these men had last seen him in Havana, Cuba, about that time, this friend had been unable to hear anything about him. He had not heard from him by letter, although John had promised to write to him. He also testified that John's intercourse with his relatives in St. Louis was of a very affectionate and friendly kind. It was undisputed that none of the friends or relatives of John in St. Louis had heard anything of him after March or May, 1899.

It was admitted that all the dues called for in the policy had been paid to defendant up to the 10th of December, 1908, when plaintiff qualified as administrator and instituted this suit.

At the instance of plaintiff the court gave three instructions. The first instruction told the jury in substance that if they found from the evidence that prior to the 11th of December, 1908, and prior to the commencement of the suit, John Walsh had disappeared and had not been heard from for seven years, and if they further believed from the evidence that defendant was notified of his death and furnished such proof thereof as the circumstances of the case would permit, and if they further found from the evidence that John Walsh had died before said proof of death and bringing of the...