24 S.D. 371 | S.D. | 1909
The defendant and appellant is an assessment benefit or insurance corporation’ organized under the laws of the state of Iowa, and having its principal place of business at Mason City, in said state. On the 26th day of December, 1904, said corporation executed and delivered to one Hattie Stegner, wife of the plaintiff, its certificate of membership, naming the plaintiff, George A. Stegner, as beneficiary, and thereby insuring the life of Hattie Stegner in the amount of one full assessment of all members in good standing, but not in any event to exceed the sum of $500. On the 23d day of February, 1905, the said Flattie Stegner duly executed and delivered to the defendant corporation a special pregnacy waiver to be attached to the certificate of. membership, as follows: “Whereas I am at this time pregnant, therefore in consideration of my said condition, I hereby agree for myself and my beneficiaries that said Modern Brotherhood of America shall not be liable under the certificate it issued to me upon said application, should I die or receive any acute injury by reason, directly or indirectly, of my said condition; and should I 'die within one year from date, it is expressly agreed for myself and my beneficiaries that the burden of proof shall be upon my beneficiaries to establish the fact that my death was not caused, directly or indirectly, by my said pregnancy or anything growing out of or connected therewith.” On ■the 31st day of August, 1905, the said Hattie Stegner was delivered of a child, and on September 10th thereafter died. Due notice and proof of death were furnished defendant under the provisions of said certificate. Payment was refused, and the
The defendant appeals from the judgment and the order overruling the motion for a new trial, and presents six assignments of error, which may all be considered under three propositions: First. Error in receiving certain ■ evidence. Second. Refusal to give an instruction requested by the defendant. Third. Insufficiency of the evidence to sustain the verdict.
Charles F. Culver, called as a witness on behalf of the plaintiff, testified: “Am a physician and surgeon and regular • graduate of the University of Minnesota, Medical Department. Graduated June, 1899. Have been practicing medicine ever since. * * * I knew Hattie W. Stegner in her lifetime, had probably known her about six months prior to her death. Could not say for sure, but about that time. I attended her as a physician. It would be impossible for me to give you the dates. She had been a patient of mine previous to this confinement. Could not tell just the dates. Could not tell very accurately how long before her confinement she had been my patient. Have been physician for the family for some time, and attended Hattie W. Stegner in childbirth. It was the last day of August, 1905. Was first called on that occasion, I think the February or March previous. * * * I was called along in the night, I think about midnight, on the 30th of August, and found she was just beginning to labor, stayed there the balance of the night, and left in the morning, was called back about noon, when delivery was finished. Her condition, when I first called, was normal in every way, so far as I could see. I made an examination. I examined the heart, pulse, temperature, and noticed the' general physical condition, and made a general examination, and found her in every way in a normal condition. Child-birth took place somewhere about noon or a little later, August 31, 1905. The
Appellant assigns as error the refusal of the court to give the following instruction: ■ “You are further instructed that the presumption was raised by reason of Mrs. Stegner’s death that she died from some ailment connected with her condition of pregnancy, and that, before plaintiff can recover, he must satisfy you by a preponderance of the evidence here produced that she died from some cause entirely disconnected with such condition. If he has failed to do so, your verdict must be for the defendant.” How far parties to contracts may bind the courts by direct stimulations as to the burden of proof in any given state of facts we need not determine at' this time. The proposed instruction goes beyond the language of the pregnancy waiver, which only attempts to provide “that the burden of proof shall be upon my
The third assignment of error, as to the insufficiency of she evidence based upon appellant’s motion to direct a verdict at the close of all the evidence, presents a much more serious question. The parties, both plaintiff and defendant, tried this action in the court below upon -the theory and assumption and have presented the same to this court upon this appeal upon the same assumption that the burden of proof rests upon respondent as a condition of recovery in this action to show that the death of Hattie Stegner “was not caused, directly or indirectly by pregnancy or anything growing out of it or connected therewith.” This assumption by both parties as to the burden of proof makes it necessary and proper for this court to con
Defendant’s motion to direct a verdict should have been sustained. The judgment and order overruling the motion for a new trial are reversed.