Reichard v. Manhattan Life Ins. Co.

Decision Date31 March 1862
Citation31 Mo. 518
CourtMissouri Supreme Court

1. As a general rule, the party holding the affirmative of the issues has the right to open and conclude the argument to the jury; but such practice being within the discretion of the court, the refusal to give the defendant the conclusion will be no cause for reversal of the judgment.

2. An agreement in a policy of insurance, executed by a foreign insurance company, that the insured waives the right to bring an action upon the policy except in the courts of the state incorporating such company, is void, both as against public policy and the statute of this state relating to foreign insurance companies of Dec. 8, 1855. (R. C. p. 884.)

3. Where, in a policy of insurance upon life, the representation was made that the insured was sober and temperate and in good health; if the representation was true at the time it was made, the subsequent habits of the insured would be no bar to a recovery upon the policy.

Appeal from St. Louis Circuit Court.

Suit upon a life policy of insurance made by the defendant, a company chartered by the state of New-York, and dated July 1, 1856, upon an application dated June 16, 1856. To the question, “Is the party sober and temperate?” the applicant answered, “Yes.” Q. “What is the present state of health of the party?” Ans. “Very good.” Q. “Does the applicant know that any misstatement would render the policy void?” Ans. “Yes.”

The application had the following provision: “I hereby expressly waive all right to bring any action for any claim whatever arising under any policy issued to me on this application and declaration except in the courts of New York.”

The policy having been forfeited by nonpayment of the premium, was renewed July 16, 1857.

The instructions appear in the opinion. The verdict was for the plaintiff.

Knox & Kellogg, for appellant.

I. The appellant insists that the respondent, before the issuing of the policy sued on, waived all right to sue except in the courts of the state of New York, and that the court erred in refusing the instruction asked to that effect.

II. The court erred in refusing to instruct the jury, that if Reichard's death was occasioned by the intemperate and excessive use of intoxicating drinks, the plaintiff was not entitled to recover.

Hart & McGibbon, for respondent.

I. The instructions asked by defendant and refused, point to no period of the life of the insured, and cover his whole lifetime. The instructions given by the court present to the jury the question, as to the truth of the declarations made by the insured in the application, and at the revival of the policy.

II. The material question was whether the assured was sober and temperate at the time the risk was to take effect, or was revived. The jury found that issue for the plaintiff, and the instructions given covering that point, it was not error to refuse to repeat them. (Williams v. VanMeter, 8 Mo. 339; Pond v. Wyman, 15 Mo. 175; Carrol v. Paul, 19 Mo. 102; Hurst v. Robison, 8 Mo. 82; Huntsman v. Rutherfurd, 13 Mo. 465; Gamache v. Piquinot, 17 Mo. 310; Young v. White, 18 Mo. 93.)

III. The waiver of the right to sue in any other court than those of the state of New York, was void, as against public policy. (Story on Cont. 545; Chitty on Cont. 674.)

BAY, Judge, delivered the opinion of the court.

This was an action to recover the sum of two thousand dollars, with interest, insured by defendant upon the lives of Frederick Reichard and Wilhelmine his wife, for the sole use of the survivor. The policy bears date July 1st, 1856, and required that the premium should be paid annually on or before the 26th of June in every year, otherwise said policy to cease and terminate. The policy became forfeited by the nonpayment of the premium, but was renewed on the 16th of July, 1857. Frederick Reichard died January 27, 1858. It is provided in the policy, and declared to be the true intent and meaning thereof, that if the declaration made by the said Frederick and Wilhelmine, bearing date the 16th and 18th days of June, 1856, and upon the faith of which the agreement was made, shall be found in any respect untrue, then and in such case said policy shall become null and void. In the statement referred to, the insured represented that they were sober and temperate, and in good health. It was also stipulated between the parties, that the insured waives all right to bring an action under said policy except in the courts of the state of New York.

The answer of defendant denies the right of plaintiff to sue in the courts of Missouri. It sets up as a further defence, that said Frederick Reichard was not a sober and temperate man when said policy was issued and when the same was revived, nor was he in good health when said policy was revived.

Upon the trial below, defendant's counsel claimed the right to open and conclude, upon the ground that the answer set up affirmative matter to defeat the action; and the refusal of the court to so permit him is assigned here as error. There can be no doubt but that the general practice in this country is to permit the party holding the affirmative, and upon whom rests the burden of proof, to open and conclude the argument to the jury, but it is a mere matter of practice resting in the discretion of the court; and this court has held, in Wade v. Scott, 7 Mo. 509, and in Tibeau v. Tibeau, 22 Mo. 77, that it will not reverse a judgment upon that ground, unless it is manifest that such refusal has produced a wrong to the party. In this case, we are not advised that the defendant suffered any injury by the ruling of the court in that respect.

The next error is that the court refused to instruct the jury, that if they found from the evidence, that, when application was made for the policy of insurance, the applicants waived all right to bring any action for any claim whatever arising under said policy except in the courts of the state of New York, then the plaintiff can...

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