38 Mo. App. 355 | Mo. Ct. App. | 1889
delivered the opinion of the court.
This was an action upon a policy of accident insurance. A trial before the court, sitting as a jury, resulted in a verdict and judgment for the defendant, from which the plaintiff prosecutes a writ of error to this court.
Against the objection of the plaintiff, the court admitted in evidence a copy of the application of the ■insured, in pursuance of which the policy was granted by the defendant. The objection was opposed, on the ground that it was a copy, that the original was in the possession of the defendant and not accounted for, and that there was no evidence that this, or any other application, had ever been made out by' the deceased, or that the blanks were filled out at the time the application was signed by the deceased. The objection was overruled, and the plaintiff excepted. The copy of the application, thus admitted in evidence, contained the following clauses : “;9. The amount of insurance in case of accidental death, to be $ No.--. 10. The amount of weekly indemnity for total disabling injuries to be ten dollars.”
The court committed error in admitting this copy in evidence without proof of the loss or destruction of the original, and without proof that the original, of which it purported .to be a copy, had been signed by the assured. But the error was not prejudicial. If the policy of insurance, had been ambiguous on its face, and if the original had been proved and put in evidence, and had contained the language above quoted, it would have been material evidence for the defendant, as showing that it was the intent of both parties that the policy should be an indemnity and not a life policy. But, as the policy shows this on its face, the evidence was immaterial, and hence not prejudicial.
The judgment will be affirmed.