Fidelity Mutual Life Association of Philadelphia v. Mettler
This was an action brought by Jennie M. Mettler in the district court of Dallas county, Texas, December 2, 1897, and removed to the circuit court of the United States for the northern district of Texas, against the Fidelity Mutual Life Insurance Association of Philadelphia, to recover on three policies of insurance upon the life of one William A. Hunter, payable to his widowed sister, Jennie M. Mettler, each stipulating for the payment of $5,000 in case of Hunter's death. The policies were dated in October, 1896, and Hunter paid at the time of their delivery the sum of $32.55 on each policy, and agreed to pay on each a like sum semi-annually thereafter, on the 28th day of the months of April and October, for the period of ten years from October 28, 1896.

At the commencement of the trial 'defendant admitted that all matters of proof relating to the death of the insured-all formal proofs-are sufficient, and that the only question to be tried and involved is the question of whether or not W. A. Hunter is dead as claimed in plaintiff's petition, and whether he died in the manner and form as alleged therein.'

The evidence tended to show that Hunter left Mrs. Mettler's house on the 3d of December, 1896, announcing his intention to go to Mentone, in Loving county, for the purpose of making proof of a section of land in that county belonging to him, and which he had occupied for three years; that he left with a team consisting of a wagon and two horses, with hay, provisions, camping outfit, cooking utensils, and a gun; and that he expected to be absent a week or ten days, intending, at a later period, after having returned from Mentone, to go back to that place; that shortly before leaving he handed to a lawyer a package of papers sealed in a large envelope, which he asked should be kept in a vault, and which packages contained the policies of insurance; and that Mrs. Mettler did not know that the policies had been taken out in her name.

The evidence further tended to show that Mrs. Mettler. not hearing anything of her brother for fifteen days after his departure, sent twice to ascertain whether he had arrived, but found that he had not; a searching party then went out; this party followed the trail of the wagon, and found it and hay, provisions, harnesses, etc., abandoned where Hunter had camped near the banks of the Pecos river, some miles distant from Pecos; a bed on the ground, which some one had slept in, cooking utensils, remains of a fire, a skillet in which meat had been fried, some bread, some tomatoes were there; and a gun was leaning against the wagon wheel. One of the horses was lying dead; it had been tied to a mesquite bush with an inch rope, and had struggled to get to the hay, but could not reach it; there were signs of the other horse, which was elsewhere seen wandering about with a rope on its neck. Footprints, identified by Mrs. Mettler as those of her brother, were found leading to the river, but not returning; two water buckets were near; some of the foot tracks were at the edge of the river; and there were marks of the slipping of one of the feet, and a broken mesquite root in the bank. 

There was conflicting evidence as to quicksands in the river, its depth, rapidity, and dangerous character. Two of defendant's witnesses gave testimony tending to show that some time after the alleged death they had seen a person whom they identified as Hunter by photographs.

In the course of the examination of plaintiff the following occurred:

'Q. State what is the general reputation in the family-your father, brothers, and sisters-as to the death of your brother, W. A. Hunter.' To which defendant objected because it is incompetent and hearsay; (2) family reputation cannot establish or prove death, especially where it is 1,500 miles away; (3) it is competent for no purpose, especially when that reputation has been established since the institution of this cause of action, which objection the court overruled, and said: 'I think the question is one of weight to be given the evidence. It is a question for the jury to say whether or not family belief tends to prove his death.' To which ruling defendant then and there excepted for the reasons stated in the objection, and the witness thereupon testified: 'My father, brothers, and sisters all believe my brother to be dead.' Witness further testified, over the same objections made by defendant, which objections were overruled by the court, and then and there excepted to by defendant, 'that the family believed he was drowned in the Pecos river, out in the West, and that this family belief has existed ever since I worte them about it.' The witness was here handed a letter, which she recognized as written by herself and addressed to her father, dated December 30, 1896. 'I think I wrote it the day I came back from the camp, from where we found my brother's camping outfit.' 'I reported that my brother was dead. I know he wrote to and received some letters from the family. The very best relations existed between my father and brother. Never was any disagreement between them. The very closest of friendship existed between my brother and me; brotherly and sisterly love.'

Plaintiff introduced the depositions of W. A. Hunter, Sr., the father of the insured, Charles E. Hunter, his brother, and five sisters, all residing in Homer, Ohio. The father, testified that plaintiff and W. A. Hunter, Jr., lived at Homer until they went to Texas in 1885; that a family correspondence had been kept up with both of them regularly until the fall of 1896, when he disappeared, and was still kept up with her; that the family relationship was happy and affectionate; that his son's habits were good, and that he possessed the confidence of his family and of his friends; that he 'seemed thoroughly contented with life, and I know of no reason to cause any change in his disposition. I could not tell exactly when any member of the family at Homer last received a letter from said William A. Hunter, Jr., but a short time before his disappearance. I last heard of him through Jennie M. Mettler, about the time he disappeared, and he was living at Mentone, Texas, I believe.'

The following question was propounded to the witness, W. A. Hunter, Sr., and to the other members of the family:

Q. If you know, state what is the general reputation and repute in the family as to whether said William A. Hunter is dead or alive? How do you know the general repute in the family as to whether he is dead or alive? If you know, what is the general repute in the family as to what has become of said William A. Hunter? As to the 'family,' who do you mean?

To this question and the answer thereto of each witness defendant then and there objected, which was overruled, and defendant excepted. The answer was:

A. That the general repute in the family is that William A. Hunter, Jr., is dead. He is supposed by the family to have drowned in the Pecos river; that is the general belief. By the 'family' is meant the father and the brothers and sisters of William A. Hunter, Jr.

Each of the other witnesses testified in substance as their father, and the same objection was made to their testimony, and the same ruling had and exception preserved. The father testified 'in answer to cross interrogatories propounded by defendant, that he never offered any reward or took any steps to find W. A. Hunter, Jr., either dead or alive, after he heard of his disappearance; that he made no inquiry concerning the said W. A. Hunter, Jr., save through his daughter, Mrs. Mettler; that he did not have the Pecos river seined, and made no search either of the river or elsewhere, or any effort to find him or his body. Newark, Licking county, Ohio, is 16 miles from witness's home. When witness saw the articles published in the Newark Advocate about the disappearance of W. A. Hunter, Jr., he did not go there to see the editor of said paper. The town is not connected by rail with witness's residence. The same facts as to failure to offer reward or to make any search or inquiry for W. A. Hunter, Jr., were elicited by cross interrogatories from Charles E. Hunter, brother of the plaintiff and W. A. Hunter, Jr.'

The jury was charged, among other things: 'Reputation in his [insured's] family on the part of his father, sisters, and brothers of his death, is proper evidence for your consideration, but not the opinion of anyone.'

The policies were stated to be made in consideration of written application of Hunter therefor, and a copy of the application was attached. Hunter therein agreed 'that the truthfulness of the statements above made or contained, by whomsoever written, is material to the risk, and is the sole basis of the contract with the said association;' 'that I will not without the written consent of the president engage in any occupation or employment more hazardous than that above mentioned; and that if any concealment, or untrue statement, or answer be made or contained herein, then the policy of insurance issued hereon and this contract shall be ipso facto null and void, and all moneys paid hereon shall be forfeited to said association.' And the applications showed, among other things, that Hunter in answering questions as to his occupation said: 'That my present occupation is real estate and farming; prior was bookkeeping.'

There was evidence that Hunter had occupied a section of land in Loving county for three years; that he was in the real estate and farming business; that he planted corn, grain, potatoes, and so on; that the farming was experimental, the land requiring irrigation; that he and Mr. Mettler, then deceased, had been connected with an irrigation company and the construction of a ditch; and that he resided at Mentone, Loving county, 'where he engaged in the real estate and farming business, and looked after their irrigation business in Loving county.' That he was bookkeeping in 1888 and 1889, and two years, deputy clerk, etc. Defendant introduced evidence in reference to forfeitures of Hunter's claims to public lands entered in February, 1897, and the testimony of a photographer that Hunter was in his employ two or three months one summer at Fort Worth, which he thought was in 1896. Defendant's agent who took the application testified that he had known Hunter since 1888, at which time he was keeping books; that Hunter stated when he applied that he was in the real estate business and farming, and that witness had a talk with him about irrigation matters in connection with his farming.

This witness testified for defendant that when Hunter made the application he said: 'That he and his brother-in-law had gotten into an irrigation scheme, and had bought a good deal of Pecos valley land, and owed a good deal of money on the land, and his brother-in-law had afterwards died, and he thought if he should happen to die his sister would lose what they had paid. For this reason he thought of taking some insurance so that she could pay the land out in the event of his death.'

The constitutionality of the statute of Texas allowing 12 per cent damages and reasonable attorneys' fees was denied and duly put in issue by defendant.

The verdict was for plaintiff for '$15,000 as principal; $2,250 as interest at rate 6 per cent from December 2nd, 1897, to June 2nd, 1900; $5,175, the same being 12 per cent damages on the amount of $15,000 and interest thereon at 6 per cent; $2,500 as reasonable attorneys' fees.' Plaintiff remitted the sum of $3,375 of said $5,175, 'leaving $1,800 on the item of 12 per cent damages, on the amount of the loss,' and judgment was thereupon entered.

The writ of error was allowed directly from this court, and a motion to dismiss for want of jurisdiction was made, the consideration of which was postponed to the merits.

Messrs. John G. Johnson, J. E. Gilbert, T. Elliott Patterson, and Maurice E. Locke for plaintiff in error.

Messrs. Charles A. Culberson and William H. Clark for defendant in error.

Mr. Chief Justice Fuller delivered the opinion of the court: 

Notes

horse away from the wagon and back to the wagon at about a half a dozen places. I think one bale of hay had been eaten and tramped down; there was a great deal of trash on the back end of the wagon and laying on the ground.'

The witness then described the tracing of the tracks of a man 'to the edge of the river and back to the wagon;' then later other footprints 'going toward the bank of the river at a point higher up.' 'We followed right up to the edge of the bank, and followed that until they went over a little slant; the top of the river bank was a little sloping; these two footprints-last two-were standing right on that slant, left foot a little behind the right. The footprints had been about half facing the river. The left foot seemed to have turned a little and slipped; the print of it was there, and showed that it had slipped; and just in front and just below where this bank dropped off perpendicular there was a mesquite root that had been broken off, and a part of it was sticking out of the ground. We could see none of these tracks were going back and away from the river; we looked to determine whether they did go away from it, and we could not see any going away from there.'

Mrs. Mettler, being informed of the discovery, went to the camp with this witness December 29, and she identified the footprints and testified to the same effect.
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