236 S.W. 1073 | Mo. Ct. App. | 1922
The plaintiff secured a judgment in the circuit court of Dunklin county against the defendant, which is a fraternal beneficiary association organized under the laws of Nebraska and licensed to transact business in the State of Missouri.
The recovery was based on a certificate which was issued on the life of Henry A. Gill by the local Camp at Malden, Dunklin county, Missouri, dated September 10, 1896. The plaintiff made a prima-facie case by showing the death of her husband, which was on July 1, 1918; that his dues were all fully paid up at that time and that she was the beneficiary. The amount of the insurance was $1000. The defendant association appeals from the judgment, assigning several grounds for a reversal, which we will take up in the order arranged in its brief.
First, on the demurrer to the evidence. It is contended that the court should have sustained a demurrer offered by defendant at the close of the evidence, on the ground that the certificate provided that if the member habitually uses opiates, cocaine, chloral or other narcotics, or poison, the certificate shall be null and void. This contention is based on the ground that plaintiff herself admitted that her husband was addicted to the use of narcotics and hence there was no question to go to the jury and the court should have directed a verdict for the defendant. This contention is based on the following evidence in the case: After the death of plaintiff's husband, the family doctor, B.E. Garrison, of Wayne City, Ill., which was the residence of the deceased and *69
plaintiff at the time of the death, wrote a letter addressed to the clerk of the Camp of defendant at Malden, Missouri, but sent it to the plaintiff. The plaintiff admitted that she received the letter and read it and then forwarded it on to the defendant's clerk. In that letter it is stated the husband of plaintiff died from an overdose of opium compound, and the letter further stated as a fact that he was a narcotic and was addicted to the use of opium. Conceding, for the disposition of this case, that when these statements were made in a letter which the plaintiff herself first received and read, and was by her delivered to the defendant, that such statements would be treated as her own statements and admissions, and in the absence of any contradictory evidence, or evidence tending to explain or throw doubt on such written admissions, she should be barred from recovery under the wholesome rule laid down in a line of cases, such as Castens v. Knights Ladies of Honor,
The rule is well established that when a plaintiff makes out a prima-facie case the question of whether that prima-facie case is destroyed must be left to the jury, unless such rebuttal evidence conclusively binds plaintiff. [See Gooden v. Modern Woodmen,
In the case of Holmes v. Protected Home Circle,
It is next contended by the appellant that the evidence conclusively shows that plaintiff's husband came to his death by his own hand or act. The evidence referred to were the affidavits of the attending physician, a relative and the beneficiary. These affidavits stated that his death came from an overdose of opium compound. This in no way is evidence that the deceased met his death by his own hand. The only other evidence in the case from which this inference could be drawn was that of a letter from Dr. Garrison, which on its very face shows that his statements were merely his own deductions and conclusions, drawn from circumstances. Such evidence is far from being sufficient to overcome the presumption of love of life and falls far short of showing that his death was caused by an accident at his own hand.
It is next contended that the demurrer should have been sustained, because there was a provision in the policy that no suit could be brought after a year had elapsed from the date of the death, it being shown that the suit in this case was filed something over one year from the time of her husband's death. The ground upon which appellant raised this propostion is that the contract was an Illinois contract, and that under the laws of Illinois such provisions in insurance contracts are valid and enforceable. We cannot uphold the contention, however, because the facts show that this man was initiated *71 and lived in Malden, Missouri, at the time he became a member of the association, and at the time the policy was delivered to him, and that he had paid dues on said policy for years in Missouri, and had only left Missouri some three years prior to the date of his death. The law of Illinois in no way applies to this policy as it was a Missouri contract. The point is ruled against appellant.
It is next contended that the circuit court of Dunklin county had no jurisdiction over this action or the person of defendant. We cannot sustain this, because the circuit court of Dunklin county, being a court of general jurisdiction, the presumption will prevail that it had jurisdiction of this cause when the record does not affirmatively makes it appear that it had no jurisdiction. [See State v. Baker,
It is clearly decided in the opinion rendered by Judge FARIS, in State ex rel. v. Gantt,
Objection is made to the plaintiff's instructions. Upon reading the same we find that these instructions declare the law of the case to the jury.
Instruction No. 1 required the jury, among other things, to find that the deceased was in good standing at the time of his death. This, of course, was amplified in defendant's instructions which were given telling the jury that if they found that he was an habitual user of opiates, they must find for the defendant; or that he intentionally took an overdose of opium they must find for the defendant, and that unless they found that the statement made by Dr. Garrison that the deceased was a habitual narcotic had not been denied or explained, his statement would bind the plaintiff and bar a recovery. These are the affirmative defenses raised by the defendant, and a finding for it on the instructions would necessarily be a finding that plaintiff was not in good standing at the time of his death. The instructions of plaintiff and defendant, when read together, clearly defined the issues to the jury to be found and contain no reversible error.
It was proper for the court to refuse defendant's instruction No. 4, because it is for the court, and not the jury, to determine the question of jurisdiction. *73
All things being considered, we find that this case was well tried, and that the verdict is for the right party and should be affirmed, and it is so ordered.
Cox, P.J., and Bradley, J., concur.