John Burney, 36 years of age, happily married with a wife and two children, disappeared on June 11, 1976. His truck was found on the Arkansas-Mississippi River Bridge. Handprints were found on the bridge rail, and it appeared as if "someone had just drug them off."
Burney's body was not found. A man's body with a wound in his head was seen by two fishermen floating down the river. The body was lost in a whirlpool and not recovered.

John Burney was declared dead. Funeral services were held.

John Burney had two substantial life insurance policies.

The Arkansas State Police, county authorities, the F.B.I., and a private investigator made an extensive search for John Burney. No trace could be found. The life insurance company published an offer of $25,000 reward for any information leading to the whereabouts of John Burney in newspapers throughout the Southwestern United States. It continued to send premium statements on the insurance policies. These were paid by Mrs. Burney.

At the time of Burney's disappearance, he was manager of the Helena Arkansas Rice Dryer, which was in financial difficulties. Burney had played the futures market, lost heavily, and sold farmers' soybeans stored in the rice dryer at a substantial loss. The farmers were furious. Threats had been made on Burney's life.

The family, convinced that John Burney was dead, held appropriate funeral services. His seven-year-old daughter, who was very close to her father, participated in the services by reading a chapter from Psalms. A grave marker was placed in the cemetery.

John Burney's wife made a demand on the insurance company for payment of benefits under the provisions of the policies. The company refused, Mrs. Burney retained me to file suit against the insurance company on March 17, 1977. The life insurance company denied liability on the ground that "plaintiff has not submitted proof of death of the insured, John Fuller Burney, and defendant denies that said insured is dead." Extensive discovery was taken, and the suit was set down for trial in the United States District Court, Eastern Division of Arkansas, on April 19, 1982.

On the date of the scheduled trial, Burney had not been heard from for six years. Arkansas has a five-year presumption of death statute. Under the statute, John Burney, by the time of trial, would be presumed dead. The Arkansas statute provides for a 12% penalty and attorneys' fees in cases where loss occurs and other expenses if the insurance company fails to pay.

The life insurance company, calculating its chances and the possibility of having a judgment rendered against it for the face value of the policies plus attorneys' fees, penalties and pre-judgment interest, decided that its best policy lay in settling the case. Accordingly, on January 26, 1982, the parties entered into a compromise settlement:

It is understood and agreed that this is the compromise settlement of doubtful and disputed claims; that the payments shall not be construed as an admission of liability on the part of the parties released by whom liability is denied; that payment is made and received in full and complete satisfaction of the aforesaid actions, causes of action, claims and demands; that the release contains the entire agreement between the parties; that the terms of this release are contractual and not a mere recital.

The dispute having been settled, the U.S. District Court entered an order of dismissal with prejudice on January 26, 1982. The court order stated:

Upon motion of the parties, it appears that the consolidated causes have been amicably settled and should be dismissed with prejudice.

Eleven months later, on December 1, 1982, John Burney's father received a telephone call. The caller announced, "Dad, this is John." Thus, after more than five years absence, thought to be dead by his wife, children, parents and relatives, presumed to be dead under the law, John Burney "came in out of the cold," and rejoined the living, and the story of his deception was told.

On June 11, 1976, the date of his disappearance, Burney had abandoned his truck on the Arkansas-Mississippi River Bridge after colliding with the bridge rail. He slipped out of the cab of his truck, climbed over the bridge railing and down a pier to the river, and swam downstream for a distance, emerging on the east bank of the Mississippi. He walked into the State of Mississippi, caught a bus, and went to Louisiana where he obtained a job as a farm laborer. He changed his name to John "Bruce" and drifted down to Key Largo, Florida.

He told no one his identity for over six years. He ignored his legal and moral obligations, including his legal duty to support his wife and family and his responsibilities concerning the Helena Arkansas Rice Dryer. He caused great anxiety by not notifying his wife, children and his own parents that he was, in fact, alive. For over six years, John Burney concealed his identity and misrepresented facts about his background. He even falsified and filed an application for a marriage license indicating that he had never been married. He did not resurface until the Arkansas five year presumption of death statute had run out.

On December 1, 1982, John Burney returned to Arkansas to visit his father. He had been injured in an industrial accident and had filed suit against the manufacturer of the machine he was operating at the time of his injury. His "common law" wife joined in his suit and claimed loss of consortium.

During Burney's deposition of his claim against the manufacturer, he was questioned about his employment background and whether he had been previously married. Burney, thereupon, asked for a recess and told his attorney his story. His attorney advised him to go back to Arkansas and get his house in order.

After being informed that John Burney was alive, I, as attorney for Mrs. Burney and her children, notified the insurance company and the Social Security Administration that John Burney was not dead. The life insurance company filed suit against Mrs. Burney seeking to recover the insurance benefits paid. (Southern Farm Bureau Life Insurance v. John Fuller Burney, a.k.a. John Bruce, Bonnie Burney, et al., LR-C-83-589, U.S. District Court, Eastern District of Arkansas). The insurance company, in its complaint, alleged fraud and mutual mistake of a material fact as grounds for setting aside the settlement agreement and recovering benefits paid to Mrs. Burney. After an extensive trial, the Court found: (1) there was no fraud on the part of Mrs. Burney; (2) there was no mutual mistake of a material fact. On the issue of a mutual mistake of fact, the court held:

The settlement agreement in this case was a compromise of a "disputed and controverted claim." A claim was filed against the insurance company. To avoid a trial and the possibility of the beneficiary obtaining a judgment, the life insurance company settled the case. The settlement agreement in this case was a compromise of a "disputed and controverted claim." Both sides were represented by counsel. They had basically the same facts. They considered their own basic interests and entered into a binding contract. Accordingly, plaintiff's claim against Mrs. Burney is dismissed. (See learned opinion of Judge Elsijane Trimble Roy, State Farm Bureau Life Insurance Co. v. John Fuller Burney, et al., U.S. District Court, Eastern District of Arkansas, Docket No. LR-C-83-589.
All insurance benefits were placed in an irrevocable trust for the education and welfare of the Burney children.

Mrs. Burney, following her husband's disappearance, had filed an application for Social Security benefits on August 6, 1976. The application for her and her children was denied on the basis that the facts and evidence did not support a finding that the claimant was dead. However, Mrs. Burney filed a request for reconsideration and the claim was subsequently reopened after extensive documentation was provided supporting the contention that Burney was deceased. Mrs. Burney and her children were subsequently awarded mother's and surviving children's Social Security benefits, which were paid commencing in January, 1980, and continued through November, 1982, when the Secretary of Health and Human Services was notified that John Burney was alive. The Social Security Administration discontinued benefits, notified Mrs. Burney that the benefits which had been received constituted an overpayment, and demanded reimbursement.

An administrative law judge found that the social security benefits paid to Mrs. Burney and the children represented overpayment. This decision was affirmed by the Social Security Appeals Council. The Secretary of the Department of Health and Human Services ordered reimbursement. I filed suit in her behalf in the United States District Court asking for a review of the Secretary's findings and order. The case was set for trial before Judge G. Thomas Eisele, U.S. District Judge, Eastern District of Arkansas. The case was to be considered by the Judge, based upon the record and the findings of the Administrative Law Judge at the hearing held on June 5, 1984. However, the transcript of the hearing had been lost by the government. The District Judge remanded the case for another hearing.

A supplemental hearing was held on November 26, 1985, after which the administrative law judge issued a recommended decision finding the plaintiff (Mrs. Burney and her children) without fault for causing the overpayment and waiving recovery of benefits paid. The Appeals Council refused to accept the administrative law judge's recommendation that payment be waived and found that requiring Mrs. Burney to repay the overpayment would not defeat the purpose of the Act or be against equity and good conscience. The case again came before Judge Eisele. This time, the transcript of the record was intact. Having reviewed the record, Judge Eisele holding for Mrs. Burney and her children stated:

The uncontroverted evidence reveals that the social security benefits received by the plaintiff were used for the daily living expenses of herself and her children. Additionally, the social security benefits were not placed in "trust," as evidence indicates that the funds in the "trust" resulted from the proceeds of insurance settlements and were the object of a separate lawsuit, which resulted in a judgment against John Burney. The evidence of record clearly shows that the benefits paid to the plaintiff and her children were used in the exact manner for which they were intended, and to refuse to waive recovery of the overpayment of these funds is certainly contrary to the purpose of Title II, as well as against equity and good conscience, in view of the particular circumstances of this case.

On June 11, 1976, John Burney climbed over the bridge rail and down the bridge piling and swam to the eastern bank of the river, walked into Mississippi and then caught a bus south. He left his family penniless and believing that he was dead. Mrs. Burney obtained a teacher's certificate, went to work, and she and her children survived. They finally began receiving Social Security benefits in January, 1980. The trials and troubles of Mrs. Burney and her children brought them closer together. Their family unity was bonded. They grieved together at the death of the husband and father. Their sorrow was compounded when they learned the truth that John Burney was not dead but that he had deserted and abandoned them.

Trial lawyers learn that the most heroic battles waged in our society are not in the political arena or the industrial sector, but in the homes of families wrung by a twist of fate, struggling to maintain family unity, integrity, and for economic survival. We also learn that overcoming adversity and suffering may have compensations:

I walked a mile with Pleasure
She chattered all the way,
But left me none the wiser
For all she had to say.

I walked a mile with Sorrow
And ne'er a word said she;
But, oh, the things I learned from her
When Sorrow walked with me!

Robert Browning Hamilton