Bathe v. Metropolitan Life Ins. Co.

• Decision Date: 05 December 1910
• Citation: 132 S.W. 743,152 Mo. App. 87
• Parties: BATHE v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

132 S.W. 743

152 Mo. App. 87

BATHE v. METROPOLITAN LIFE INS. CO.

Springfield Court of Appeals. Missouri.

December 5, 1910.

Rehearing Denied December 22, 1910.

1. INSURANCE (§ 646)—ACTIONS ON LIFE POLICIES—BURDEN OF PROOF.

In an action on a life policy, void if insured had had before its issuance any pulmonary disease, insurer has the burden of proving the defense that insured had tuberculosis when the policy was issued.

2. EVIDENCE (§ 91)—BURDEN OF PROOF.

The burden of proving a fact is on the party asserting the affirmative of the issue.

3. INSURANCE (§ 646)—ACTIONS ON LIFE POLICIES —BURDEN OF PROOF.

In an action on a life policy, plaintiff must prove the issue of the policy, payment of the premiums, the death of insured, the giving of notice and the making of proof, and a general compliance with the conditions of the policy, but, where the answer sets up special and affirmative matters of defense under the policy, it is error to charge that plaintiff must prove a compliance with all the terms of the policy.

4. INSURANCE (§ 646)—ACTIONS ON LIFE POLICIES —BURDEN OF PROOF.

Where, in an action on a life policy, void if insured had had pulmonary disease before the issuance of the policy, insurer alleged that insured had tuberculosis at the time and was not in sound health, and the beneficiary, the husband of insured, testified that he first discovered that his wife had tuberculosis subsequent to the issuance of the policy, and that she died of quick consumption, and he had no peculiar knowledge as to the health of insured at the time of the issuance of the policy, it was not error to require insurer to establish the truth of its answer as against the objection that the proof lay peculiarly within the knowledge of the beneficiary.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by Charles G. Bathe against the Metropolitan Life Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Thomas Dolan and E. F. Cameron, for appellant. Mooneyham & Shepherd, for respondent.

NIXON, P. J.

Appellant on April 5, 1909, issued to one Della Bathe a policy of insurance on her life for the benefit of her husband, the respondent, by the terms of which appellant agreed to pay on the proof of her death $276, or one-half of that sum if she died within six months after the date of the policy. She died on July 28, 1909, according to the statement of the attending physician in the death proofs, of "(1) chief or primary, consumption, (2) contributing or secondary." On proof of death being made and appellant refusing to pay, respondent brought suit in a justice's court on the policy, the case later reaching the circuit court where it was tried de novo, a verdict being rendered for $140.02. The defendant below is appellant here.

The petition was in the usual form. The answer, after admitting the issuance of the policy on April 5, 1909, and denying every other allegation in the petition, contains the following: "Further answering, says that in the application, which was signed on the 24th day of May (March?), 1909, by Della Bathe, the life who was insured in said policy, she said that she had never been treated within the last two years by any physician for any complaint, which answer was false; and that she had been treated during July and August, 1908, by a physician for tuberculosis, the disease with which she died, and, if this had been known to defendant, the policy which was issued to her would not have been issued to her. Further answering, defendant says: That the policy above referred to contains the following: `Unless otherwise stated in the blank space below in a waiver signed by the secretary, this policy is void if the insured before its date has been rejected for insurance by this or any other company, or has been attended by a physician for any serious disease or complaint; or has had before said date any pulmonary disease, or chronic bronchitis, or cancer, or disease of the heart, liver or kidneys.' That the secretary of said company has not indorsed a waiver of any of the terms contained therein, and defendant states that at the time said policy was issued and long prior thereto Della Bathe, the life which was insured therein, was affected with tuberculosis, the disease with which she died in July, 1909. That defendant did not know said Della Bathe was affected with said disease until after she died, although it was known to her at and prior to the time the policy was issued to her, and said Della Bathe misrepresented the condition of her life to the defendant at the time said policy was issued, and, if the condition of her life had been known to defendant, said policy would not have been issued." At the conclusion of plaintiff's evidence and again at the close of all the evidence, defendant requested, and the court refused to give a peremptory instruction that plaintiff had not shown himself entitled to recover.

The policy contained the following provisions: "* * * In consideration of the payment of the premium mentioned in the schedule below, on or before each Monday, doth hereby agree, subject to the conditions below and on page 2 hereof, each of which is hereby made a part of this contract and contracted by the assured to be a part hereof, to pay upon receipt of proofs of the death of the insured made in the...