| Mo. | Jul 15, 1874
delivered tbe opinion of tbe court.
This was an action on a life policy of insurance issued by the defendant to Gottlieb Rippstein insuring bis life in the sum of five thousand dollars, and which, upon his death, before a certain period, was to be paid to his heirs. The plaintiffs sue as his lieirs and allege that be died before the period referred to, in the county of Gasconade. The policy exempts tbe defendant from all liability in ease bis death was occasioned by delirium tremens.
The defendant, in its answer, pleaded to the jurisdiction of the court, on the ground that its chief office of business was in St. Louis, and that the cause of action could not arise in Gas-conade County where the suit was brought. The answer stated, that the defendant appeared only for the purpose of pleading to the jurisdiction ; but in tbe same answer tbe defendant denied the material allegations of the petition and set np as a defense, that the said Gottlieb Rippstein died of delirium tremens, and that the plaintiffs did not comply with
The 28th section of the corporation law (1 Wagn. Stat., 294) allows suits to be brought either in the county where the. cause of action accrued, or in the county where corporations have, or usually keep, an officer or agent for the transaction of their business. This cause of action accrued upon the death of the insured, which occurred in Gasconade County. The contract, though made in St. Louis county, Avas transitory and followed the person of the insured, and the cause of action accrued by his death in Gasconade County. But the appearance to the merits and setting up a defense in bar to the action, waived the matter of abatement, and it is, therefore, immaterial whether the court decided this plea rightly or wrongly. (Fugate vs. Glasscock, 7 Mo., 377; Cannon vs. McManus, 17 Mo., 345" court="Mo." date_filed="1852-10-15" href="https://app.midpage.ai/document/cannon-v-mcmanus-7998968?utm_source=webapp" opinion_id="7998968">17 Mo., 345.)
The case on the merits was submitted to a jury and resulted in a verdict and judgment for the plaintiffs, from which the defendant has appealed to this court.
After the death of the insured, the plaintiffs applied to the defendant for the insurance money, and the defendant refused to pay, upon the alleged ground that the insured had died from delirium tremens. The agent of the defendant, to whom application was made, stated, that the proofs were not satisfactory that the insured had not come to his death by delirium tremens.
There was no objection to the form or manner of the proofs, or that the plaintiffs had not complied with the by-laws of the company. The objection was, that the company was not satisfied and refused to pay, because the insured had died of delirium tremens — which was excepted by the policy. This refusal to pay the insurance money, based as it was on the alleged ground that the death was such as to exempt the company from any payment at all, was a waiver of the formal proofs required by the by-laws of the company. The court so instructed the jury, and in this we think there was no error.
Judgment affirmed;