73 Mo. App. 371 | Mo. Ct. App. | 1898
This action is based on a certificate of insurance issued by defendant to Aaron Thomas for the benefit of his wife, the plaintiff, who |s now his widow. The answer, after the withdrawal of portions of it as written, was a general denial and a plea that the suit was prematurely brought. The withdrawal of portions of the answer eliminates some of the matters discussed by counsel and we need only address ourselves to what remained in the case after the withdrawal.
Defendant insists that the certificate should not have been allowed in evidence since, as is asserted, it was not the whole of the written contract between it and the deceased as shown by the certificate itself. The certificate is as follows:
“In consideration of the representations and agreements contained in the application of Mr. Aaron Thomas, of Archie, Missouri, by occupation a farmer, the said Aaron Thomas is hereby admitted to membership in this association, and in the event of his death during such membership the beneficiaries or personal representative will be entitled to receive the sum of one thousand dollars out of the mortuary fund of the association, such fund to be created under
“This contract is' subject to the conditions indorsed hereon, including those contained in the application of the insured, also indorsed hereon each of which conditions is a material part thereof.”
“In witness, etc.”
The indorsements referred to do not appear in the record, but defendant contends the application should have been introduced as a part of plaintiff’s case, so as to show the whole contract.
In our opinion the point is not well made. Plaintiff’s petition is based on a contract of insurance charged to have been executed by the defendant. Defendant, while filing a general denial, does not make oath, to such denial. We must, therefore, apply section 2186, Revised Statutes 1889, wherein it is provided that if the. action is founded on an instrument in writing charged to have been executed by the opposite party and not alleged to be lost or destroyed, the execution of the instrument declared on will be deemed to be confessed unless it be denied by answer or replication verified by affidavit. It was therefore unnecessary for plaintiff to have read the policy in evidence. It stood confessed as a valid contract and any defense which defendant has sought to urge in the case would be such as should have been affirmatively set up in the answer. Smith Co. v. Rombaugh, 21 Mo. App. 390.
2. In our opinion the suit was not prematurely brought. The policy provides that the sum named in the policy shall not be due until ninety days after the proofs of loss shall have been received by defendant at its office in Council Bluffs, Iowa. Proofs of death were made out and were received by defendant February 3. Defendant acknowledged receipt of same and made no objection thereto. They retained such proofs without criticism or objection for more than three months. On the contrary, in the correspondence which followed, it must be inferred that defendant intended to pay as soon as it could reach the claim. After the expiration of more than three months defendant sent for some additional data.
Retaining proofs of loss without objection is, under some circumstances, merely evidence of waiver of any defect in the proofs. In other circumstances the retention of proofs would be declared a waiver by the court, as a matter of law. In this ease, while it was not expressly so declared, yet the effect' of the trial court’s ruling was that the retention of the proofs of loss by defendant was a waiver of defects, or an acceptance of the papers sent as proper proofs. There was no dispute as to the facts and nothing to submit in the form of a hypothesis and the court properly held that proofs had-been made on'February 3. That being more than ninety days prior to the institution of the suit it results, as before stated, that the suit was not brought too early.
The record, in our opinion, shows no error justifying an interference with the judgment, and it is accordingly affirmed.