Troll v. Protected Home Circle

• Decision Date: 05 December 1911
• Citation: 141 S.W. 916,161 Mo. App. 719
• Parties: TROLL et al. v. PROTECTED HOME CIRCLE.
• Court: Missouri Court of Appeals

141 S.W. 916

161 Mo. App. 719

TROLL et al. v. PROTECTED HOME CIRCLE.

St. Louis Court of Appeals. Missouri.

December 5, 1911.

Rehearing Denied December 22, 1911.

1. TRIAL (§ 139)—QUESTION FOR COURT OR JURY—WEIGHT OF EVIDENCE.

Where plaintiff's evidence admittedly established a prima facie case, and defendant was put to its affirmative defense, on which it had the burden of proof, that the testimony in support of such defense was uncontradicted did not give the court jurisdiction to direct the jury to return a verdict for defendant.

2. NEW TRIAL (§ 78)—SUFFICIENCY OF EVIDENCE.

Where a verdict is returned, the court may set it aside as against the weight of the evidence granting plaintiff a new trial; but, if on the new trial plaintiff again prevails, the court is powerless to interfere on the same ground.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by Harry Troll, as Public Administrator of St. Louis, in charge of the estate of Uretta Rogers, and another, against the Protected Home Circle, a corporation. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

E. E. Schnepp, for appellants. R. P. & C. B. Williams, for respondent.

CAULFIELD, J.

Suit on a benefit certificate for $1,000 issued by the defendant, a fraternal beneficiary association. The plaintiffs appeal from a judgment entered on a directed verdict for the defendant, assigning as error the trial court's action in peremptorily instructing the jury at the close of all the evidence, to return a verdict for the defendant.

There is no necessity for reciting the evidence in support of the plaintiffs' petition. It is conceded that such evidence made a prima facie case for plaintiffs, and that defendant was put to its affirmative defense. This defense was that the insured had been taken sick after making her application and before the delivery of the benefit certificate to her and had not been subjected to another medical examination, and that by her agreement contained in the application the insurance was to become void in that event. The reply in effect admitted said agreement, but denied the other allegations. The defendant offered testimony on its part tending to prove such controverted allegations. The testimony was uncontradicted. Plaintiffs offered no evidence and made no admissions in that respect. The trial court directed a verdict for defendant for the sole reason that in its opinion the testimony offered by the defendant, being uncontradicted, had so fully established the affirmative defense that a verdict for plaintiffs would be set aside as being against the weight of the evidence. Whether such direction was authorized by law is the question for us to determine.

The plaintiffs had prima facie established their right to recover. Indeed, counsel for defendant states in his brief that...