52 Mo. 529 | Mo. | 1873
delivered the opinion of the court.
The plaintiff, as assignee of Hackett & Ackle, commenced this action to recover the amount of a policy of insurance,
Upon tlie conclusion of the testimony the plaintiff asked the Court to instruct the Jury; that it was admitted in the case, that the plaintiff had a prima facie right to recover, and that the verdict ought to he for the plaintiff, for the amount claimed, unless defendant had made out some legal defense, to the satisfaction of the jury.
This instruction the Court refused, and then in its second instruction, given at defendants instance, it cast the burden on the plaintiff of proving, that the affirmative allegations set up in the answer, were not true. This was really its effect. The verdict was for the defendant. The case was then taken to General Term, where the ruling at Special Term was reversed, and defendant ajipealed.
The ruling of tlie Court at Special Term was unquestionably wrong.
When the defendant admitted the canse of action as stated in the petition, by not denying any of its allegations, it confessed that the plaintiff had a good case, and it undertook to avoid it, by making averments which would destroy th oprima facie case set out in the petition. These averments it devolved on defendant to prove. It assumed the attitude of a plaintiff, opened and closed the case, and undertook to establish the independent matter set up. Unless it satisfied the jury by its proof that its allegations were true, tbe plaintiff was certainly entitled to a verdict. After tbe plaintiff’s case was admitted by tbe pleadings, tbe Court at Special Term still required it to prove up its case, and to show further' that it had done nothing that would impair or vitiate the policy.