DISSENTING OPINION.
GOODE, J.The instructions given by the learned circuit judge and quoted in the majority opinion do not strike me as being fairly open to the criticism that they told the jury Winter was presumed, incontrovertibly, to be dead and submitted for their finding on the evidence only the question of when he died, nor to the further criticism of assuming there were no facts connected with his disappearance which tended to rebut the presumption of death arising from his absence for seven years without his family receiving tidings of him. The lack of tidings for that period undoubtedly raised the presumption of death; for it was said in Hancock v. American Life Insurance Co., 62 Mo. 26: “All the authorities agree that when a party has been absent seven years since any intelligence has been received of him, he is in contemplation of law, presumed to be dead,” and this rule is reiterated in that authority several times in substantially the same language and is generally accepted by the. courts. 1 Greenleaf, Evid. (16 Ed.), sec. 4; Thayer, Evid., p. 319. But the legal presumption of the death of a person from his unexplained absence from home for seven years is a disputable one and may be rebutted by any circumstance connected with his disappearance or failure to return which satisfies the triers of the fact that he is still living. But ifc is a presumption which the law raises, subject to rebuttal, from his absence without news of him and is not a mere inference of fact.
In this case, the circumstance that Winter was in *21arrears as treasurer of the lodge when he disappeared, while it would not prevent the disputable legal presumption of death from arising [Mut. Ben. Life Ins. Co. v. Martin, 55 S. W. (Ky.) 694] and shifting the burden of proof to the defendant to show he was alive, was competent evidence for the jury’s consideration in determining whether he was alive or dead [19 Am. and Eng. Ency. Law (1 Ed.), page 46, and cases cited] and, in my opinion, that circumstance was not withdrawn from their consideration by the first instruction, but was carefully submitted by that one, as well as by the other two, in language which referred to them all the facts of his character, habits and disappearance as means of ascertaining whether or not he had died. In fact, all three of the instructions required the jury to find from the evidence that Winter died prior to March 10, 1894, as the condition, and the sole condition, on which they might return a verdict for the plaintiff; which was according to law, for there is no presumption as to the time at which a person absent and unheard of for seven years, died. Hancock v. Ins. Co., supra. It is said, however, that the instructions assumed he was dead instead of submitting that issue to the jury for a finding, but they only assume it to the extent the law does; namely as a disputable presumption, subject to disproof. . And it seems to me oversubtle to say that an instruction requiring them to find that he died did not likewise require them to find he was dead. Moreover, the force of this objection to the instructions, however strong it might be if a long interval separated the date of his disappearance from the date when he must be found to have died for this action to lie, is diminished to the vanishing point by the fact that Winter disappeared January 18,1894, and the jury were told in three charges that they must find he died prior to March 10, 1894, or less than three months after his disappearance, which, as to all questions arising in this case, was equivalent to charging them that they must find from the evi*22donee that his death occurred simultaneously with his disappearance. In other words, the jury in effect were told they must find his death as a fact from the proof before them. Hence, if there was error in the following portion of the first instruction: “If from the evidence you find and believe that prior to February 11, 1901, the date of the commencement of this suit, Gustav Winter disappeared and has not been heard from for seven years then, in the absence of any rebutting circumstances, he is presumed to be dead” (which I do not concede but believe the law aé there declared is supported by Hancock v. Ins. Co., supra), it was at most a harmless error; and this is especially true in view of the first paragraph of the third instruction which reads as follows : “Unless you find as hereinabove instructed that Gustav Winter died before March 10,1894, your verdict must be for the defendant. ’ ’
As the instructions given were correct while all those refused were faulty, according to my understanding of the law, I think the judgment in this cause should be affirmed.