TBA Law Blog

Posted by: Donald Paine on Jan 1, 2014

Journal Issue Date: Jan 2014

Journal Name: January 2014 - Vol. 50, No. 1

The modern illiterati have coined the verb “to go missing.” Bob Armstrong did that back in literate days. On Monday, Aug. 19, 1974, he left his wife Wanda (Elwanda) and two daughters and two foster sons in Hendersonville to take a trip to Texas. Nothing seemed unusual at first. Armstrong, 40, sold life insurance and traveled a lot. But on this trip, unbeknownst to his wife, he was accompanied by another insurance agent. She was Wanda Green, the young mother, 21, of a young daughter, 4.

After a month of Bob’s lies about being divorced and wanting to remarry, Wanda Green and child flew to Nashville. Bob called her on the telephone. From the transcript in a later trial, we learn the conversation.

Q. What did he say to you?

A. He wanted to know if I was coming back to him. I told him no. I told him to come to Nashville and he said no. He threatened me that, if I didn’t come back to him, he would disappear from the face of the earth.

Years passed, and neither wife Wanda nor brief-mistress Wanda heard tidings from Robert Charles Armstrong. Wanda Armstrong filed suit on Aug. 11, 1980, against Pilot Life Insurance Company to collect a $30,000 policy. Trial was held in Gallatin, Sumner County, before Chancellor Edward M. Turner on Feb. 25, 1982, more than seven years after the disappearance.

I invite you to read Judge Lew Conner’s excellent opinion, Armstrong v. Pilot Life Insurance Company, 656 S.W.2d 18 (Tenn. App. 1983). But the Tenn. Code Ann. has been amended since then. So let’s examine current law on the presumption arising from absence.

Tenn. Code Ann. §§30-3-101 through 114 comprise the Uniform Absence as Evidence of Death and Absentees’ Property Law. Portions of §30-3-102 are crucial and worth quoting.

(a) A person absent from such person’s residence and unheard of for seven years or longer, whose absence is not satisfactorily explained, is presumed to be dead; provided, however, such presumption may be rebutted by proof.

(b) Exposure to specific peril shall be considered in every case. If during such absence the person has been exposed to a specific peril of death, this fact shall be considered by the court, or if there be a jury, shall be sufficient evidence for submission to the jury.

Wanda Armstrong lost her lawsuit against Pilot Life. Would she win today? I’m unsure, but the presumption of death would give her a better chance of recovering $30,000.

Donald F. Paine DONALD F. PAINE died Nov. 18, 2013. He was a past president of the Tennessee Bar Association and at the time of his death was of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He was member emeritus to the Tennessee Bar Journal Editorial Board. He wrote his columns months in advance, and as a result, “Paine on Procedure” will continue through mid-2014.