69 Mo. App. 126 | Mo. Ct. App. | 1897
This is an action on a policy of life insurance for $1,000, dated on the twenty-second day of August, 1892. It was issued on the life of Josephine Mey, and the plaintiff was named as the beneficiary therein. Josephine Mey died in July, 1893. The defendant is an Iowa corporation, and is doing a life insurance business on the assessment plan. At the date of the policy it was doing business in this state under the provisions of article 3, chapter 89 of the Revised Statutes of 1889. By the terms of the policy and of the written application of the assured her answers to questions propounded in the application were made warranties and parts of the contract.
The answer contained a general denial, and among other special defenses, it was averred that the assured was asked this question, to which she made a false answer to wit: (Question 22.) “Have you consulted any physician regarding your health within the past five years? If so, what physician, when and for what disease? State fully and give all particulars.” Answer. “Dr. Steer in December, 1891, for. headache.” It is claimed that the answer was false, in that the assured consulted Dr. Steer for valvular disease of the heart. The replication put in issue the new matter contained in the answer. The cause was submitted to a jury. There was a verdict for plaintiff, upon which a judgment was entered. The defendant has appealed and assigns
As a condition of the liability of the defendant the policy provides that on the death of the assured “full and complete proofs satisfactory to the association of the existence of a valid claim” shall be furnished to defendant by the beneficiary. It was specially provided that the proofs must show that the policy had been kept in force by a full compliance on the part of the assured with all of the terms and conditions of the contract, and an explanation of the manner and cause of death of the member was also required to be given. It is insisted that the evidence offered by plaintiff failed to show a compliance with the foregoing requirements of the policy, and that for that reason the instruction of nonsuit ought to have been given.
The defendant admitted at the trial that all assessments against the policy had been paid by the assured, and that Thomas Vardinski was the curator of plaintiff’s estate.
The plain tiff read in evidence the policy, and proved that the assured died on July 28,1893. Concerning the proofs of death the plaintiff’s evidence tended to prove that Vardinski gave the defendant’s local agent ■verbal notice of the death; that afterward he received from defendant, through its home office, blanks for proofs of death; that he delivered the blanks to a justice of the peace for the purpose of having them filled; that the proofs were made as indicated in the blanks, and forwarded to the defendant at its home office in Burlington, Iowa, and that they were received by defendant on the eighteenth day of September, 1893. It was conceded that the defendant had written a letter to Vardinski denying all liability under the
All the positive evidence bearing on the question was introduced by defendant, and may be briefly summarized as follows: Dr. Steer testified that sometime during the year 1891, he treated the assured for valvular disease of the heart; that at that time the indications of the trouble were pronounced and discoverable by even a casual examination, that the disease was incurable, and that he did not treat the deceased after that-time. He admitted that he might be mistaken as to the time of the treatment. He had an extensive practice, and there were no charges on his books from which he could fix the exact date. He also admitted that a serious ease of that kind of heart-trouble might develop suddenly, but it was generally a matter of slow growth. As a part of the proofs of loss the policy required the beneficiary to make out and forward to the defendant a sworn statement of the immediate and remote cause of the death of the assured, her family history, and the name of the physicians, whom she had previously consulted as to her health, etc. The curator herein complied with this requirement of the policy. He stated that the immediate-cause of the death of the assured was disease of the heart, and that about nine months prior to her death she consulted Dr. Steer for pains in'the head and
In rebuttal plaintiff introduced several witnesses, who testified that they were intimately acquainted with the assured, and that up to a few days before her death she was apparently in good health. Some of the witnesses stated that she was subject to spells of headache. This was all of the evidence bearing on the issue.
It must be borne in mind that as to the issue tried' the burden of proof was on the defendant. It devolved on it to allege and prove the untruthfulness of the answer complained of. 1 Beach on Insurance, sections 423-425, and authorities cited, Therefore counsel for defendant is wrong in his contention that the circuit court committed error in refusing to direct the jury to find the issue for the defendant. Under the practice in this state it is beyond the power of a trial court to direct a verdict in favor of the party sustaining the burden of proof, unless the testimony is admitted to be true or the proof is documentary, which the opposite party is estopped to deny. Such a direction under other circumstances would be an invasion of the province of the jury. Bryan v. Weir, 4 Mo. 116;
Finding no reversible error in the record, the judgment of the circuit court will be affirmed.