179 Mo. App. 608 | Mo. Ct. App. | 1913
Defendant appeals from an order of the court setting aside a judgment of involuntary nonsuit entered against plaintiff. The suit is on a certificate of life insurance issued by defendant, a mutual benefit society.
The sole defense relied upon in the answer is that the insured member voluntarily resigned his membership in the order shortly prior to his death. This defense, however, is denied in the reply and a sharp issue is made concerning it. Plaintiffs are children of the inusred member, and it is conceded that they are the proper beneficiaries and as such entitled to recover, provided the insurance contract obtained at the time of the death of their father.
It appears that at the trial plaintiffs introduced in evidence the benefit certificate issued by defendant order to their father several years before, and established the fact of his death, which is conceded. A prima-facie case for them having thus been made, defendant assumed the burden of establishing the defense set forth in its answer — that is, that David Keily, the insured member, resigned from the order in open meeting of his council on October 27, 1910. It appears that on November twelfth the insured took sick and departed this life November 24, 1910. The
It appears that at a recent convention of the order, the Knights of- Father Matthew, the rates for insurance had been readjusted and the new rating fell with a heavy hand upon the older members. Keily, the insured, was an elderly man and had been a member of the order for many years. According to the new rates he would be required to pay on his $2000 insurance an assessment of about $7.28 per month, whereas theretofore he had paid but $3.58 on the same. He and others of the older membership affiliated with St. Bridget’s Council in St. Louis were greatly displeased because of this. On the night of October 27, 1910 this matter was freely discussed at the meeting of St. Bridget’s Council, of which Keily was a member, and he participated in the discussion. The record reveals that the meeting was more or less a stormy one and a number of the members expressed themselves with considerable force and vehemence on the subject. Mr. Keily was a man of determination and spoke with emphasis suggesting that the recent re-rating was unjust to himself and many of the others situated like he. Finally, during the meeting, Mr. Keily went forward to the desk of the secretary and paid his last previous assessment, it is said that falling due on September thirtieth. A number of wit-, nesses on the part of defendant who were present say that Mr. Keily then declared that he resigned from the order and would no longer affiliate with it; that he turned around after paying the financial secretary and waved his passbook over his head as if greatly vexed and openly asserted his resignation from the order in open meeting. However, it does not appear that the
There is evidence, too, on the part of defendant that some of the members besought the insured not to resign from the order but to continue as a social member even though he abandoned his insurance. It is said that Mr. Keily paid no heed to these friendly suggestions and said that he was “done.” Several witnesses for defendant having stated the facts to have transpired at the meeting of the council as above set forth, plaintiffs introduced others in rebuttal. One of these witnesses introduced by plaintiffs is an eminent expert on handwriting, who testified that upon carefully inspecting the passbook of David Keily, the insured member, it appeared the last assessment paid by him, according to the entry in the passbook, was on October 28, 1910 instead of October 27, the date of the meeting. Moreover, the insured’s passbook itself bearing the date was introduced in evidence and exhibited to the jury. This evidence, of course, tends in a way to contradict defendant’s theory that Keily paid his last assessment on October 27 in open meeting, and tends to show he acted the part of a member thereafter. Plaintiffs likewise introduced two witnesses, members of the order, who were present at the meeting and were, no doubt, so situate as to observe and know what occurred there in respect of remarks addressed openly to the meeting as such, that is in contradistinction to private remarks or conservation. One of these witnesses, Mr. John T. Hunt, stated that he, too, participated in the discussion of the rates and
The witness Flanagan, introduced in rebuttal by plaintiffs, testifies positively that Mr. Keily did not say he resigned from the order. This witness says, “I sat pretty close to him, probably three or four chairs away from him” and he heard Mr. Keily’s remarks addressed to the meeting. The witness says, “Mr. Keily left the chair and walked up to the financial secretary, and went up there with his book, and he turned away after he left the secretary, he held his book up and says ‘I am done.’ He walks back and somebody then asked about the rate question, and I don’t know whether it was Mr. Keily, or not, that asked about the rate question.” At another place in his testimony the following questions propounded to, and answers by, this witness appear: “Q. Don’t you
On this evidence and at the conclusion of the entire case, the court gave an instruction at defendant’s request peremptorily directing a verdict for it and plaintiffs thereupon took an involuntary nonsuit. Thereafter the court sustained plaintiffs’ motion, which was duly filed, to set the nonsuit aside, and reinstated the case on the docket for trial. The appeal is prosecuted from this order, and it is insisted the court erred in sustaining the motion to set aside the judgment of nonsuit, for it is said there was no issue of fact whatever for the jury. We do not accede to this view, however, for obviously it is not within the province of the court to weigh the testimony, give judgment upon the credibility of the witnesses and declare as a conclusion of law that a valid defense appeared —that is, that Keily had actually resigned from the order on October 27. There can be no doubt that, by offering the certificate of insurance in evidence and showing the death of the member, plaintiffs made a prima-facie case, for the status of the member as insured in the order thus shown to be once fixed is presumed by the law to continue until the contrary is made to appear. Thereafter the burden of proof is on ■defendant to relieve itself from the obligation to respond on the relation, and the contract which is thus prima facie established. [See Stewart v. Sup. Council, etc., 36 Mo. App. 319; Mulroy v. Sup. Lodge, etc., 28 Mo. App. 463; 3 Cooley’s Briefs on Insurance, p. 2425.] Plaintiffs thus having made a prima-facie case for the consideration of the jury, it devolved upon defendant to overthrow it by showing that the insured member resigned his membership in the order and thus abandoned his insurance in open meeting of St. Bridget’s Council on October 27, 1910.
No steps had been taken towards suspending Keily for nonpayment of the assessment called for the month of October, and it may be, though the point is. not decided because it is neither made nor involved here, that his insurance continued for that reason until his death on November 24 unless he resigned on
It appears that some days after the meeting of October 27 Keily was reported by the financial secretary of St. Bridget’s Council to the superior office of the order as having resigned and his name was entered there accordingly. But, of course, such is not conclusive on the beneficiaries, plaintiffs here, unless their father actually resigned at the time. There is considerable evidence that he did so, and this, too, in the open meeting and thereafter refused to even affiliate further as a social member of the order without insurance. But there is evidence, too, introduced in rebuttal, tending to prove that the financial secretary received his assessments on October 28 and credited the same as of that date in his passbook. It is true the secretary says he may have made a mistake in entering the date and that he received no assessments from Keily after the meeting of October 27; but be this as it may, the book was in evidence together with the testimony of the expert on handwriting and that of the financial secretary, and no one can doubt the matter of the credibility of the witnesses and the weight to be given and value of their testimony was one for the jury.
Moreover, the testimony of Mr. Hunt goes to the ■effect that, though he was within fifteen or twenty feet of Keily and looking at him all the time when it is said he resigned, he heard no such statement made by him. It is true this witness says that he did not hear what Mr. Keily said to the financial secretary, but it may be inferred from this that Keily made no ■statement openly to the council to the effect that he resigned from the order. The evidence of this witness is contradictory to that of others who gave evi
Furthermore, the evidence of the witness Flanagan, introduced in rebuttal, is pointed and direct to the effect that Mr. Keily did not resign at the time. This witness repeats the statement that Keily said nothing about resigning from the order but merely waved his passbook in the air and said, ‘ ‘ I am done. ’r Obviously the court may not declare as a matter of law the meaning involved in the words, ‘ ‘ I am done, ’ * when considered with relation to the facts in proof. This is within the province of the jury alone, for it is to be ascertained in pais and no principles of law whatever intervene for reckoning in the solution. It may be when Keily said, “I am done,” he intended the council should understand that he then resigned his membership in the order, or it may be that he intended he was done attending the meetings only, in which latter event he might keep up and continue his-insurance thereafter. But it is not for us to say what he intended by those words, for no one can doubt that the question of intention not clearly expressed is one in pais, to be ascertained and determined by the triers of fact, and not declared as a conclusion of law in any case, and especially so in one of this character.
Obviously there was sufficient in the evidence introduced in rebuttal to render the question of whether
We have examined the authorities cited by defendant, and upon scrutinizing them discover nothing in conflict with the rule last stated. The court very properly set the judgment of involuntary nonsuit . aside and reinstated the case on the docket for trial. Obviously the facts in the record invoke the consideration of a jury. The order setting aside the nonsuit should be affirmed and the case remanded for further proceedings. It is so ordered.