Collins v. German-American Mut. Life Ass'n.
Decision Date | 18 April 1905 |
Citation | 86 S.W. 891,112 Mo. App. 209 |
Parties | COLLINS v. GERMAN-AMERICAN MUT. LIFE ASS'N OF BURLINGTON, IOWA. |
Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; William Zachritz, Judge.
Action by Maggie Collins against the German-American Mutual Life Association of Burlington, Iowa. From a judgment in favor of defendant, plaintiff appeals. Affirmed.
O. J. & R. Lee Mudd, for appellant. W. C. & J. C. Jones, for respondent.
The suit is on a policy of insurance. The petition is in the usual form, and alleges such facts as, if true, would entitle plaintiff to recover. The answer admitted all the allegations of the petition, except it set forth as an affirmative defense a breach of warranty by the insured, in that in her application for the policy she misrepresented and falsely warranted her age; that she warranted herself not to be older than 59 years at the date of the making of the contract of insurance, when in fact she was 72 years of age; and it is further alleged in the answer that defendant is an insurance company doing business only on the assessment plan. On the trial this latter allegation of the answer was admitted; also that the defendant was restricted and limited by its charter to conducting insurance business on the assessment plan. On the pleadings the trial was restricted to one issue, to wit, whether or not the insured warranted her age, and whether there was a breach of warranty in respect to her age. The court properly ruled that the burden of proof was on defendant, and the defendant assumed the burden.
To establish its defense, defendant read the following from the application for insurance: Also the following clause in said application: "I hereby agree that the foregoing statements and answers are by me warranted to be complete and true, and are offered to said association as a consideration of the contract; and I further agree that failure to comply with any of the terms of this agreement, or with any of the conditions and agreements contained in the certificate of membership (should one be issued) then this agreement shall become null and void, and all moneys which have been paid shall be forfeited to the association, for its sole use and benefit." Defendant also read from the proofs furnished it by plaintiff the following extract from plaintiff's affidavit: Defendant also offered in evidence the affidavit of Franciska Bierman, in which he stated that he had known deceased for 10 years, and that she was 75 years old at her death. Defendant then offered depositions taken in Ireland, to which plaintiff objected on the ground that the subject-matter of the same is "irrelevant, incompetent, and immaterial, because certified copies of church records attached as exhibits are but private writings, and, as such, incompetent, irrelevant, and immaterial as evidence to prove any issue in this cause; that no public law of the Kingdom of Great Britain and Ireland is shown to require such records to be kept; and, as such records were not required to be kept by public law at the time and place where they were made, they are but private writings, and hence incompetent; and, further, it does not appear that there was at the time such records were made any public law requiring them to be made and kept, nor was there any custom or rule of the Catholic Church at such time and place to make and keep such records." The objections were overruled by the court, and the plaintiff excepted to the ruling of the court, and saved her exceptions.
The depositions consist of the following exhibits: Exhibit A, headed "Baptismal Certificate St. Mary's Parish, Clonmel." Said certificate (Exhibit A) states and expresses upon its face: The certificate is subscribed and attested as follows:
Said Exhibit A has written on the face with pen and ink the following names:
Exhibit B, headed "Baptismal Certificate, St. Mary's Parish, Clonmel." This certificate upon its face expresses the following: The certificate is attested and signed as follows: This certificate has written on its face in ink, the following names:
Exhibit C. This certificate is headed "Baptismal Certificate, St. Mary's Parish, Clonmel," and expresses and purports upon its face in printing and ink as follows: And has in printing and writing at the bottom the following: And has written in ink on the face of it the following names:
Exhibit D, headed "Baptismal Certificate, St. Mary's Parish, Clonmel," and expressed upon its face the following: Certified and signed as follows: This certificate has written upon its face the following names:
Exhibit E is headed "Baptismal Certificate Extracted from the Baptismal Register of SS. Peter and Paul's, Clonmel," and expressed the following: And has the following certificate: This certificate has written upon it with pen and ink the following: ...
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Request your trial- Collins v. The German-American Mutual Life Association of Burlington, Iowa
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Baldwin v. Salgado
...64 Mich. 671, 31 N. W. 576, 8 Am. St. Rep. 855; Drosdowski v. Chosen Friends, 114 Mich. 178, 72 N. W. 169; Collins v. Germ. Am. Mut. Life Ass'n, 112 Mo. App. 209, 86 S. W. 891. We have no authoritative decisions in this state as to the admissibility of such registers to show age of the part......