*1 TERM, MARCH 1920. of tbe assailed,
This instruction view but re- no that it contains case indicated think above, error. versible foregoing
In the Commis- of the above view court of' the trial recommends that the sioner be affirmed. opinion foregoing of
PER CURIAM: The Barnes, adopted opinion judg- court. The C., is of .the accordingly, is, court affirmed. ment of the circuit Reynolds, Becker, J., JJ., concur. P. Allen WILLIAMS, D. LAURA WILLIAMS and WILLIAM Appellants, OF AMERI MODERN WOODMEN Respondent. Corporation, aCA, Opinion May 4, Appeals. Filed Louis Court of St. Beneficiary Proof Death: Fraternal Associations:
1. INSURANCE: Where bene- as to Cause of Death: Not Conclusive. Affidavits present the time were ficiaries in life benefit not certificates prepared by рroofs died, were officers they camp, know made the local did not making death, but in as to how insured came to the affidavits suggestion acting and advice affidavits were such circumstances, officers, under such local against the beneficiaries. were not conclusive Burden Proof: Does Not Shift. The EVIDENCE: burden throughout shift, pаrty remains trial with never placed asserting issue, and where the affirmative of it is pleadings instance. first Beneficiary Fraternal Associations: Proof of 3. INSURANCE: Issu- ance of Certificate and Death Prima-facie Case. Proof of issu- made, being certificate of insurance and death estab- ance facie, beneficiаry. prima a case favor iishes . Pleadings: -: Evidence: Proof Insurer. 4. -: Burden certificate, beneficiary In an general on a where action the answer was plea admitting the issuance of denial and- an affirmative assured, the death of the the burden throughout there the trial remained defendant APPEAL MISSOURI REPORTS.
Williams M. v. W. A. case; alleged affirmatively tlie having defendant that deceased prohibited death; at the time of that his death reason resulted thereof trace- *2 employment occupation. able to his in said Appeal City from the Circuit Court of the Louis.— of St. Benjamin Judge.
Hon. J. Klene, REVERSED' AND REMANDED. appellants. Pirkey
Earl M. for (1) give It is reversible an error to incorrеct instruc request litigant tion at the of the successful or of court’s motion which own conflicts a correct instruc given losing party.. tion at the instance of the Mansu-r- Imp. Imp. Tibbetts v.Co. Ritchie Co. Mo. Ritchie, v. 143 Company 612; State exrel. Central Coal & Coke v. Elli Easton-Taylor son et 270:Mo. 645 al., ; Trust Co. v. Loker Flintjer City, 205 al., et S. W. 87; v. Kansas 204 S. W. Martmowsky City 951; App. v. 35' Mо. Hannibal, 70; Desnóyérs Company Ramsey, Shoe v. Lisman and App 85 Sheperd 345; v. Louis Transit St. 189'Mo. Co., 373; Wal App. lack v. St. Louis Transit Co., 123 Mo. 167; Porter Ry. (2) v. P. 199 Co., Mo. 83. Mío. It is reversible error thing to reiterate the same party. in instructions one for App. v. 191 Mo. (3) Lutz, Reeves 559. It is reversible judge for the error trial to' comment the evidence. Hutchinsonj Safety Company, v. Gate Mo. 247 112; v. Wheeler 53 Walace, Mich. 355; 33 American Law
Register
pages
City,
Review,
42-43; Rose v. Kansas
App.
125
v.
-236;
Mo.
Landers
Q. O. & K. C. R. Co.,
App.
143 Mo.
v.
Mo. P. R.
App.
McGinnis
Co., M!o.
par.
Schmidt v.
7;'
St. Louis Railroad,
Respondent’s answer and into insurance entered plea that contract by: was evidenced respondent, between the deceased and certifi- benefit (2), application deceased; (1), the which by-laws respondent, on; (3), catе sued out the sej;s further and contract, became part application and the benefit provisions of by-laws, provisions and numerous membership and issuance of to the subsequent that deceased, alleges death, had become certificate, prior employ occupation, lineman to-wit, hazardоus or electric power electric an electric car company ene'gaged such that he company; telephone line elec-' at the time of his received thereof,- that his death reason shock; trie resulted oc- employment traceable in said to- cupation. ’ reply denial. Aрpellants general show that introduced
Appellants Will-, were the father mother of E. deceased, George iams, peti- that he died on the date mentioned in the paid all had tion, dues. was not delin- he' *5 APPEAL REPORTS. MISSOURI v. W. A.
Williams quent at the time of arid then offered the bene- fit certificate and rested their case.
Respondent authоrity issued the certificate offered by Superintendent business the State Insurance do to- society. in a It then of State Missouri as benefit the by-laws, the fered sections and several respon death which clerk of were with .the filed head September D. claimants, on dent, William 28,1915, Williams and Laura This included affidavits Williams. evi claimants; verdict, made the coroner’s testimony inquest; wit taken at the dence also the upon pole deceased, nesses were either with who he all which was died, near the time same, an elec death was caused from effect that deceased’s employment working tric company, shock while electric pоle up taking slack electric wires. up- working Kloppenburg that he was
Witness stated pole died, at the he on the same time hap- anything, question if had what, as to answer pened deceased), day (meaning Mr. said: Landscape pulling Avenue and
“We slack on were pulled out the slack cut two wires had phase our connection, slacked off outside and made our ready got jumper our off. He worked blocks and to take my east with back to me and I west and turned back around I heard turned him, turned flash and grabbed hanging and I him him his belt and saw got help take him down off I until held him pole.” testimony de- shows, examination
The had dark burns found that he across cеased was right between the arm wrist and and on abdomen the left arm between elbow and shoul- elbow, ' '' "'Ny der. by respondent, including the All the evidence offered claimants, affidavits made well as verdict jury, witnesses nearest coroner’s > TEEM, 1920.
MAECH *6 M. A. v. W. at his the time deceased came to death, of shows that by working death an shock electric while he received upon pole company. this an electric tending
Appellants, to in offered evidence rebuttal, day, very it the hot evidence that show and also day feeling deceased was on the he died or was not well testifying for Buchanan, Eandle, killed. Drs. Snow plaintiffs, hypothetical questions, response in to stated, by being either that came to his death over- deceased he at time sunstroke; heat that was dead the come upon wires, the conclusion he touched their based upon body the of location the marks, burns, the stating if that deceased, face, and to color of a man he is it malees a a wire strikes after Black dead, coming in but that if the deceased, as that mark, caused marks death, with the wire itself contact red. two- however, The further disclosed that physicians made affidavits on 211st of these had prior September, trial, that 1915, date of come to death reason of electric had deceasеd they had concluded date, but the aforesaid since shock, were, they an examination of authorities mistaken after necessary proper determination and other facts neces- Such other evidence as cause of death. proper sary determination this to, to refer later. will be referred
Aрpellants testified rebuttal that- neither present that died, at the time were them prepared proofs local were officers they camp; did not know their son affidavits, how came his made such sug acting making affidavits, said were respond gestion of the officers of the advice local that; opinion, are оf the order. ent We circumstances, not were conclusive death, under beneficiaries, [Queatham Modern Wood America, 33, 651.] men of 204 MISSOURI APPEAL REPORTS. Williams' v. W. principal urged The contention before this court, respect with giving error es- instructions. It is pecially urged given at the re- Instruction No. quest respondent, given by and Instruction 9,No. the cоurt own In- motion, conflict with were! given request appellants, struction No, 3> giving therefore the of instructions 9 and Nos. 10' prejudicial following error. The instructions, are the which, claimed, it is conflict each other, giving complained which resulted in the error of:
III. respect “The to jury court 'instructs the that with occupation Georgе the defense on the E. Wil- founded proof that liams, defendant; rests with the burden prove your by a satisfaction is, the defendant must to weight preponderance greater evidence that or of the occupa- Ueorge engaged in an E. said Williams was by-laws tion hazardous defendant’s classified ’ prohibited that his traceаble to was occupation.” such
IX. jury “The instructs that the burden court plaintiff preponder- proof on establish to is weight greater the facts neces- evidence, ance or sary instructions. in their favor under these to a verdict ‘preponder- <‘By ‘Burden Proof’ the terms to reference intends no the court evidencе,’ ance concerning any testifying fact, the number witnesses simply upon anyj those uses issue expressing way which -briefly law, the rule terms appears evidence.(as issue) to such that unless is, respect preponderate, your.judgment credibility,, party on of this action or in-favor of the* proof issue) (as then rests, such the burden whom -party on issue.” you should find said such TERM, 1920. MARCH Williams v. W.
X. jury if “The instructs court you equally are unable to determine divided so that your preponderates verdict whose favor the evidence must be for the defendant.” pleadings, urged by appellants,
It is under the policy, membership' of the deceased’s issuance good standing and* that he the timé of. respondent; pleaded and that admitted, death, were proof burden of affirmative defense, inasmuch as the burden defense; such establish proof of respondent shifts, never the burden support in this In of this conten case. Berger Storage are cited tion, & Commis Company, App. sion 444, S. Mo. Implement Company Mansur-Tebbetts Ritсhie, Mo. 587, 45 W.
It is true, the burden of never re shifts and throughout asserting party mains the trial with the placed by affirmative where it issue; the' pleadings in [10 the first instance. R. L. Marshall C. very McKelvy, Li Co. v. l. c. *8 Storage Berger Company, supra; & Commission Major l. c. 170 Kidd, 879.] S. pleadings necessary be refer
It to the will upon in order determine bur- bar, case at whom the proof By rested. reference to an- den of defendant’s n paragraph general first thereof, find in the swer, ip plaintiff’s petition, allegations except denial of be expressly true. Defendant admitted to such as “and for its affirmative defense answering further then alleges” alleged it plaintiffs’’ that of action ,'to cause beneficiary society, en- admits the and contract "fraternal George El it and thé deceased, between Wil- tered into on, sued the issuance and the benefit certificate liams, George the' Said the death El Williams, that óf also and day September, 1915; then tenth and occurred pro- that further avers Í44 APPEAL REPORTS. MISSOURI
Williams v. W. A. of] hibited and that his death, his death traceable therеto.
It is so well as the this State, settled law necessary it is not authorities, that when to cite of the issuance this made, death is plaintiffs’ prima-facie makes or establishes case. There- fore answer in this admitted all the case facts neces- plaintiffs’ sary prima-facie make and the bur- upon placed pleadings den was defendant throughout there remained trial the case. may The burden of the evidence from shift side one progresses; other as the trial the burden of not. does alleged
The defendant affirmative fact which liability. would relieve it from The issue was therefore upon allegation, raised defendant’s affirmative proof. it rested the burden of [Swift Company & Mutter, Ill. Home Ben. Association v. Sargent, 142 Stokes v. 581.] U. N. Y. Stokes, giving
It therefore, follows Instructions 0 and Nos. reversible error, was! for this the cause be should reversed remanded for a new trial. [Easton-Taylor Company (Mo. Trust Loker et al. App.), 87.] 205 S. W.
Inasmuch the' is to case retried, be not be will' necessary assigned appel- other errors notice ’ for the reason that will brief, lants not occur hearing. another above stated, the reasons
For Commissioner that the trial recommends court be re- remanded the cause trial. new versed opinion foregoing PER CURIAM: The Nipper, opinion adopted judg- court. as the The isC., accordingly court reversed circuit ment of the trial. for a new remanded cause *9 Reynolds, Becker, JJ., P. Allen J., concur.