Winter v. Supreme Lodge K. P.

• Decision Date: 31 March 1903
• Citation: 101 Mo. App. 550,73 S.W. 877
• Court: Missouri Court of Appeals
• Parties: WINTER v. SUPREME LODGE K. P.<SMALL><SUP>*</SUP></SMALL>

73 S.W. 877

101 Mo. App. 550.

WINTER v. SUPREME LODGE K. P.^*

Court of Appeals at St. Louis, Missouri.

March 31, 1903.

APPEAL—LAW OF THE CASE—SUFFICIENCY OF EVIDENCE—MUTUAL BENEFIT INSURANCE— SUIT ON CERTIFICATE—INSTRUCTIONS.

1. On an appeal in a suit on a mutual benefit certificate, the court, in reviewing the sufficiency of the evidence to show death before the date of a forfeiture for nonpayment of assessments, said, "She was required merely to furnish proof which tended to show that fact, and to make it appear to the jury more probable or credible than otherwise; that is to say, by a preponderance of the evidence. That she did." Held, that on a retrial, the evidence being specifically the same, this decision was res judicata, and a demurrer to plaintiff's evidence was properly overruled.

2. Where in a suit on a mutual benefit certificate the only issue is whether deceased died before the certificate was forfeited, and no theory as to the manner of death is submitted to the jury, requested instructions based on the theory of suicide are properly refused.

Appeal from St. Louis Circuit Court; Selden P. Spencer, Judge.

Action by Lena Winter against the Supreme Lodge Knights of Pythias. Judgment for plaintiff, and defendant appeals. Affirmed.

The suit is to recover $2,000 on a certificate of insurance issued by defendant on the life of Gustav Winter, payable at his death to his wife, Lena Winter, the plaintiff. It is admitted by the pleadings that the defendant is a fraternal beneficiary corporation. It was also admitted on the trial that Gustav Winter was dead, and proof of his death had been duly made, and that he had paid all dues and assessments to the association, and was in good standing, up to and including March 10, 1894; that for nonpayment of dues and assessments after March 10, 1894, he was suspended from the order some time during the summer or fall months of 1894, and was never thereafter reinstated. The only question of fact contested at the trial was as to the date of the death of the insured. The contention of plaintiff was that he died prior to March 10, 1894, of defendant that the evidence did not prove or tend to prove that he died prior to that date, or at any time prior to seven years after January 18, 1894. The evidence is that the insured had been the treasurer of his lodge in the city of St. Louis for six or eight years prior to an election for officers of the lodge which took place the first week in January, 1894, when he was defeated for re-election; that at this time he was a defaulter to his lodge for the sum of $196, but the defalcation was unknown to his lodge at the time; that he was a tailor by trade, sober and industrious, and of a kindly disposition, and that his domestic relations were happy; that his only means of support were his earnings as a tailor; that he had no shop of his own, but procured work from tailoring establishments, which work he took to his home to do; that for six weeks prior to January 18, 1894, though he had diligently hunted, he had been unable to find any work; that for this reason he became very much depressed, was despondent, and at times acted unnaturally; that between 1 and 2 o'clock on January 18, 1894, he left home, saying that he was going to Mr. Schlesinger, who, he said, had promised to give him some work. There was only a few dollars in money in the house at this time. He took no extra clothing with him, did not go to Mr. Schlesinger's, and never was seen or heard of afterwards. His family and friends searched St. Louis and East St. Louis for him, and advertised his disappearance in the papers, but no tidings were ever had or trace of him ever found.

The defendant offered a demurrer to the evidence, which was by the court overruled, and the court instructed the jury as follows: "Gentlemen of the jury, all questions in this case, except one, have been eliminated from your consideration by the statement of counsel, and that question for you to determine is this: Did Gustav Winter die before March 10, 1894? It is admitted that his dues in defendant lodge were all paid up to March 10, 1894, and that the plaintiff in this case made all necessary proofs of loss, and that, if Gustav Winter died prior to March 10, 1894, the plaintiff in this case is entitled to your verdict. In determining the question thus submitted to you, you are instructed that the burden of proving that the death of Gustav Winter occurred prior to March 10, 1894, is upon the plaintiff; that is, she must establish the truth of it by a preponderance or greater weight of the testimony. The fact or time of death need not be proved, however, by positive or direct evidence, but may be established by an unexplained disappearance, as hereinafter provided. If you believe from the evidence that prior to March 10, 1894, Gustav Winter disappeared, and has not been heard of for seven years—and that considering all the other...