152 Mo. App. 87 | Mo. Ct. App. | 1910
Appellant, on April 5, 1909, issued to one Della Bathe, a policy of insurance on her life, for the benefit of her husband, the respondent, by the terms of which appellant agreed to pay on the proof of her death, $276, or one-half of that sum if she died within six months after the date of the policy. She died on July 28, 1909, according to the statement of the attending physician in the death proofs, of “(1) chief or primary, consumption, (2) contributing or secondary.” On proof of death being made and appellant refusing to pay, respondent brought suit in a justice’s court on the policy, the case later reaching the circuit court where it was tried de novo, a verdict being rendered for $140.02. The defendant below is appellant here.
The petition was in the usual form. The answer, after admitting the issuance of the policy on April 5, 1909, and denying every other allegation in the petition, contains the following:
“Further answering, says that in the application, which was signed on the 24th day of May (March?) 1909, by Della Bathe, the life who was insured in said policy, she said that she had never been treated within the last two years by any physician for any complaint, which answer was false; and that she had been treated during July and August, 1908, by a physician for tuberculosis, the disease with which she died, and if this had been known to defendant the policy which was issued to her would not have been issued to her.
“Further answering, defendant says that- the policy above referred to contains the following: ‘Unless otherwise stated in the blank space below in a waiver signed by the secretary, this policy is void if the insured before its date has been rejected for in*91 surance by this or any other company, or has been attended by a physician for any serious disease or complaint; or has had before said date any pulmonary disease, or chronic bronchitis, or cancer, or disease of the heart, liver or kidneys.’ That the secretary of said company has not endorsed a waiver of any of the terms contained therein, and defendant states that at the time said policy was issued and long prior thereto, Della Bathe, the life which was insured therein, was affected with tuberculosis, the disease with which she died in July, 1909; that defendant did not know said Della Bathe was affected with said disease until after she died, although'it was known to her at and prior to the time the policy was issued to her, and said Della Bathe misrepresented the condition of her life to the defendant at the time said policy was issued, and if the condition of her life had been known to defendant said policy would not have been issued.”
At the conclusion of plaintiff’s evidence and again at the close of all the evidence defendant requested and the court refused to give a peremptory instruction-that plaintiff had not shown himself entitled to recover.
The policy contained the following provisions:
“. . . In consideration of the payment of the premium mentioned in the schedule below, on or before each Monday, doth hereby agree, subject to the conditions below and on page 2 hereof, each of which is hereby made a part of this contract and contracted by the assured to be a part hereof, to pay upon receipt of proofs of the death of the insured made in the manner, to the extent and upon the blanks required herein, and upon surrender of this policy and all receipt books, the amount stipulated in said schedule. Provided, however, that no obligation is assumed by the company prior to the date hereof, nor unless on said date the insured is alive and in sound health.” (Un*92 der the head of “Conditions”); “Unless otherwise stated in the blank space below in a waiver signed by the secretary, this policy is void if the insured before its date has been rejected for insurance by this or any other .company, or has been attended by a physician for any serious disease or complaint; or has had before said date any pulmonary disease, or chronic bronchitis, or cancer, or disease of the heart, liver or kidney. ’ ’
The contention upon which appellant rests this appeal is that the burden of proving that deceased was in sound health on April 5', 1909 — that is, that she did not have tuberculosis — rested upon the plaintiff, and that as plaintiff’s evidence wholly failed to establish this, the peremptory instruction was erroneously refused. That defendant did not proceed on this theory in the trial court will appear presently when we consider the attempts made by defendant to prove this part of the case.
Plaintiff, as a witness, after stating that the premiums on the policy were duly' paid, etc., testified that his wife gave birth to a child on April 15, 1909, ten days after the policy was issued, and was sick there-, after all the time until her death on July 28, 1909. That he first discovered she had tuberculosis some time in June, 1909 (when Dr. Blackwell made an examination) and the witness stated that she died of quick consumption. The testimony of Dr. Blackwell, for the plaintiff, contains nothing helpful here. Dr. Thornton, defendant’s witness, testified: “A. I‘gave her a few prescriptions to alleviate her condition in early pregnancy and at that time she was run down and coughing a little and I advised Mr. Bathe to take her out West, thinking it would benefit her in a general way and if there was a tendency to tuberculosis it would do her a great deal of good. Q. Piad you examined Mrs. Bathe at that time you talked to Mr. Bathe? A. In what way do you mean ? Q. Observed her, looked at her? A. Oh, yes, in a general way as you would
The burden of proving that deceased had tuberculosis at the time of the issuance of the policy was not upon the plaintiff. The answer of the defendant stated
But, contend appellant’s counsel, the averment that deceased was not in sound health at the time of the issuance of the policy was, according to the manner in which it was pleaded in the answer, a negative averment, and that the trial court erroneously required the defendant to establish the existence of this negative when the proof lay peculiarly within the knowledge of the plaintiff and it was therefore incumbent upon the plaintiff to make the proof. How it can be seriously maintained that the knowledge of such facts lay peculiarly within the plaintiff’s knowledge, if we keep in mind the plaintiff’s testimony, we are at .a loss to understand. The plaintiff, as a witness, ex