Turner v. Nat. Benev. Society

• Decision Date: 20 May 1930
• Docket Number: No. 4716.,4716.
• Citation: 28 S.W.2d 125
• Court: Missouri Court of Appeals
• Parties: J.C. TURNER, RESPONDENT, v. THE NATIONAL BENEVOLENT SOCIETY, A CORPORATION, APPELLANT.<SMALL><SUP>*</SUP></SMALL>

28 S.W.2d 125

J.C. TURNER, RESPONDENT, v. THE NATIONAL BENEVOLENT SOCIETY, A CORPORATION, APPELLANT.^*

No. 4716.

Springfield Court of Appeals. Missouri.

May 20, 1930.

Appeal from the Butler County Circuit Court. — Hon. Charles L. Ferguson, Judge.

AFFIRMED.

Henson & Woody for appellant.

(1) The burden was on plaintiff to prove by the greater weight of the evidence that Patsy Turner did not die from tuberculosis, or from any of the diseases excepted in the policy sued on. Griffith v. Casualty Co., 299 S.W. 426, 253 Mo. 1043; Same case, 290 Mo. 455, 235 S.W. 83; Downs v. Holmes, 287 Mo. 414, 230 S.W. 103; Beckerleg v. Accident Assn., 274 S.W. 917; Narrow v. Pacific Mut. Life Ins. Co., 294 S.W. 97. (2) The evidence introduced by plaintiff showed Patsy Turner's death was result of a chronic ulcer therefore, defendant's demurrer should have been given. Rodgers v. Insurance Co., 272 S.W. 1052; Sharber v. Insurance Co., 226 S.W. 267. (3) When defendant introduced the certified copy of death certificate showing that Patsy Turner died from tuberculosis, the burden of proof shifted to plaintiff to show that she did not die from that disease, therefore, plaintiff's instructions 1 and 2 were erroneous. Sec. 5816, R.S. 1919; Citizens Trust Co. v. Ward, 230 S.W. 653; Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854; Taylor v. Telegraph Co., 181 Mo. App. 288; Glassman v. Insurance Co., 182 Mo. App. 304; Kazee v. Life Ins. Co., 217 S.W. 339; and cases cited under (1) and (2).

Abington, Abington & Freer for respondent.

The burden was not upon plaintiff to show by greater weight of evidence that Patsy Turner did not die from tuberculosis or from any of the diseases excepted on the back of the policy sued on. The burden was clearly upon defendant, because it was the very essence of its defense as affirmatively pleaded in its answer. The respondent made out his case by showing the issuance of the policy, the payment of the premiums, the fact of death of insured, the making of proof of death and the refusal of appellant to pay. Heinrichs v. Royal Neighbors of America, 292 S.W. 1054; Bathe v. Metropolitan Life Ins. Co., 152 Mo. App. 87, 132 S.W. 743; Stephens v. Fire Association, 139 Mo. App. 369, 123 S.W. 63; Fetter v. Casualty Co., 174 Mo. l.c. 269; Wolfgram v. W.M.A., 167 Mo. App. 220.

COX, P.J.

Action upon an insurance policy. Plaintiff recovered and defendant appealed.

The petition was in the usual form and alleged that a policy was issued to Patsy Turner, wife of plaintiff, with plaintiff as beneficiary; the death of the insured and that the insured and plaintiff had fully complied with all the terms and provisions of the policy on their part.

The answer admitted the incorporation of the defendant, the issuance of the policy with plaintiff as beneficiary, the death of the insured and denied generally all other allegations of the petition. It then further alleged that defendant was a fraternal benefit society and that the policy contained a provision as follows: "These benefits do not cover the following disabilities or their results, viz.: paralysis, disease of the heart or its organs, tuberculosis, venereal or chronic diseases, insanity, intoxication or fighting." It then alleged that the death of the insured was caused by tuberculosis and for that reason defendant was not liable on the policy. The reply was a general denial.

At the trial it was admitted that plaintiff was the husband of the insured and was the beneficiary in the policy. That all dues had been paid at the date of the death of the insured and proof of death had been made. The plaintiff testified that his wife died August 10, 1928, in City Hospital No. 2 in St. Louis, Missouri. That she had been afflicted about four or five months. Plaintiff then introduced the policy and rested.

The defendant then introduced in evidence a certified copy of the death certificate issued by the State Registrar of Vital Statistics of the State Board of Health. This certificate was signed by Dr. J.J. Thomas who was connected with the hospital where the insured died and had attended her while confined in the hospital. This certificate contained a statement that the cause of death was "Potts disease of lumbo sacral spine." This same doctor testified by deposition as a witness for defendant that her death resulted from Potts disease, which is tuberculosis of the spine and there were no other complications or conditions that contributed to produce the death. The plaintiff in rebuttal introduced Dr. Clay who testified that he treated the deceased in June and July of 1928 and that she went to the hospital the next week after she was at his office the last time. He testified that she was afflicted with an abscess on the outside of her hip which was discharging a large amount of blood and that in his judgment the hemorrhage from the abscess caused her death. He saw her the last time about twelve days before she died and he found no indication of Potts disease and that the time was too short after he saw her last for her to have contracted that disease and for that disease to have caused her death.

There was a direct conflict between these two doctors as to the cause of the death of the insured. The defendant then introduced Dr. Henrickson who corroborated Dr. Thomas. After the introduction of all the evidence the defendant asked a peremptory instruction to the jury to find in its favor. This was refused.

The court instructed the jury that the burden of proof was upon defendant to establish the allegation that the insured's death was caused by tuberculosis and that raises the chief question on this appeal. The appellant seeks to invoke in its favor the rule that when plaintiff relies upon a presumption of fact to make out a prima-facie case and defendant proves what were the actual facts, then the presumption disappears and plaintiff's prima-facie case goes with it and if no other evidence is offered the defendant is entitled to a directed verdict and cites a large number of cases which uphold that proposition. These cases correctly state the law on the facts therein recited but we do...