Troll v. Protected Home Circle

• Decision Date: 05 December 1911
• Citation: 141 S.W. 916,161 Mo.App. 719
• Parties: HARRY TROLL, Public Administrator, in charge of Estate of URETTA ROGERS et al., Appellants, v. PROTECTED HOME CIRCLE, Respondent
• Court: Missouri Court of Appeals

141 S.W. 916

161 Mo.App. 719

HARRY TROLL, Public Administrator, in charge of Estate of URETTA ROGERS et al., Appellants, v. PROTECTED HOME CIRCLE, Respondent

Court of Appeals of Missouri, St. Louis

December 5, 1911

Appeal from St. Louis City Circuit Court.--Hon. Moses N. Sale Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Emerson E. Schnepp for appellants.

When the plaintiff has made out a prima facie case, although the defendant may introduce evidence which entirely overthrows and disproves the prima facie case of the plaintiff, the trial court cannot say, as a matter of law, that it is so overthrown, and direct a verdict for the defendant. The credibility of the witnesses and the weight of the evidence are peculiarly matters for the jury. The plaintiff is entitled to have the judgment of the jury on the credibility of the witnesses produced by defendant, and the value of their testimony. Boone v. R. R., 20 Mo.App. 235; Hirsch v. Grand Lodge, 78 Mo.App. 361; Jefferson v. Life Assn., 69 Mo.App. 133; Dawson v Wombles, 111 Mo.App. 540; Reynolds v. Hood, 209 Mo. 618; Gannon v. Light Co., 145 Mo. 514.

R. P and C. B. Williams for respondent; J. A. McLaughry of counsel.

CAULFIELD, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

CAULFIELD, J.--

Suit on a benefit certificate for one thousand dollars 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 the facts necessary to that end were uncontroverted. The defendant was driven to its affirmative defense. As to this defendant asserted the affirmative of the issue and the burden of proof was on it. Now, under the practice in this state, it is beyond the power of a trial court to direct a verdict in favor of the party having the burden of proof where, as here, the issue of fact is controverted, and oral testimony, not admitted to be true, must be relied on in proof thereof. Such a direction under these circumstances is an invasion of the province of the jury and a denial of the right to...