Rodgers v. National Life & Accident Ins. Co.

• Decision Date: 02 June 1925
• Docket Number: No. 19058.,19058.
• Court: Missouri Court of Appeals
• Parties: RODGERS v. NATIONAL LIFE & ACCIDENT INS. CO. OF NASHVILLE, TENN.

272 S.W. 1052

RODGERS v. NATIONAL LIFE & ACCIDENT INS. CO. OF NASHVILLE, TENN.

No. 19058.

St. Louis Court of Appeals. Missouri.

June 2, 1925.

Rehearing Denied June 24, 1925.

Appeal from St. Louis Circuit Court; Anthony F. Ittner, Judge.

"Not to be officially published."

Action by Melissa Rodgers against the National Life & Accident Insurance Company of Nashville, Tenn. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Bounds E. Hamilton, of St. Louis, for appellant.

Earl M. Pirkey and Charles F. Ballak, both of St. Louis, for respondent.

NIPPER, J.

Plaintiff sued defendant in a justice court on an insurance policy. The case reached the circuit court, and, upon a trial, plaintiff recovered judgment in the sum of $115.50, with interest amounting to $23.70, making a total of $139.20. Defendant brings the case here on appeal.

The evidence is not voluminous, and defendant on appeal raises only one question as grounds for reversal, and that is the action of the lower court in refusing to give a certain instruction requested by it.

Plaintiff was the beneficiary in a policy issued by defendant to her son, Rockwell McDonald. McDonald took out the policy in November, 1919, and died in May, 1920. All premiums were paid on the policy. Defendant refused to pay the amount named in the policy. In the certificate of death, filed in the office of the state board of statistics, the cause of death was given as "dementia paralytica."

Dr. John Ryburn, a witness on behalf of defendant, testified that dementia paralytica was caused solely by syphilis, so far as his knowledge extended, and that syphilis was a venereal disease. Clause 6 of the policy provides that no benefits shall be paid for sickness or death "resulting from venereal diseases," etc.

It appears that defendant requested only one instruction, which is as follows:

"The court instructs the jury that, if you find and believe from the evidence that deceased, Rockwell McDonald, died from dementia paralytica, and that said disease was caused from syphilis, and that syphilis is a venereal disease, then your verdict should be for the defendant."

The court refused to give this instruction, and this is assigned as the sole ground of error on the part of defendant, who is the appellant here.

Plaintiff insists that the court did not err in refusing to give this instruction, because clause 6 of the policy, above referred to, does not exempt the company where the insured dies from a disease caused by a...