Froehlich v. Atlas Life Ins. Co.
| Decision Date | 31 March 1871 |
| Parties | CATHERINE FROEHLICH, Respondent, v. ATLAS LIFE INSURANCE COMPANY, Appellant. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court.
Bakewell & Farish, for respondent.
T. Polk, for appellant.
This is a suit upon a life insurance policy issued in favor of plaintiff upon the life of her husband. The petition describes the contract very briefly, alleges the death of the assured, that all premiums were paid up to his death, that due notice and proof of death were given with demand, etc., and that plaintiff and deceased had fulfilled all the conditions of the policy. Defendant admitted the contract, the notice and proof of death, but denied that the premiums were paid and the conditions, etc., fulfilled. Specifically the answer set out that at the time of issuing the policy it was agreed that the premiums should be paid quarterly, and for the annual premium of $93.60 deceased paid one-fourth down, and for the balance gave his three promissory notes at three, six and nine months, and that the last note fell due before his death, which he failed to pay. The answer further sets out one of the conditions of the policy not contained in the petition, to-wit: that it was not to take effect until the first premium was actually paid, and alleges that on the 19th of August, the note having fallen due on the 15th, the deceased having died or being mortally sick, between three and four o'clock P. M., the plaintiff, fraudulently representing that he was living and well, induced the defendant, trusting to such false representations, to receive the amount due on said note. The reply did not deny this condition of the policy, but denied the fraud, alleging that the note was paid on the 19th before the death of Froelich.
The case was submitted to the jury under instructions satisfactory to defendant's counsel, and a verdict was given for the plaintiff. Upon motion for new trial the judge who tried the cause gave as a reason for overruling it, and his remarks are embodied in the bill of exceptions, that his instructions upon the breach of the condition in not paying the note were too favorable to defendant; that he now believed that the recital in the policy that the first year's premium of $93.60 was paid was conclusive upon the company and could not be contradicted, and hence the alleged fraud was immaterial; although, under the instructions as given upon this point, he thought the verdict was contrary to the evidence. The defendant now objects to the consideration of this recital in the policy upon two grounds: first, the policy was not submitted in evidence, was not in...
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