Wolfgram v. Modern Woodmen of America.

• Decision Date: 19 July 1912
• Citation: 149 S.W. 1167
• Parties: WOLFGRAM v. MODERN WOODMEN OF AMERICA.
• Court: Missouri Court of Appeals

149 S.W. 1167

WOLFGRAM v. MODERN WOODMEN OF AMERICA.

St. Louis Court of Appeals. Missouri.

July 19, 1912.

Rehearing Denied October 15, 1912.

1. INSURANCE (§ 817) — FRATERNAL INSURANCE—BURDEN OF PROOF.

A mutual benefit association seeking to defeat a recovery on a certificate on the ground that insured died by accident, directly traceable to employment in a prohibited occupation, has the burden of establishing the defense, where the facts making out a prima facie case for plaintiff are agreed on.

2. APPEAL AND ERROR (§ )—DIRECTION OF VERDICT—WHEN AUTHORIZED.

To justify an appellate court in convicting a trial court of error in refusing to direct a verdict for defendants, the facts necessary for the defense must have been conceded by plaintiff, expressly or by implication, or they must have been established by uncontradicted evidence, not dependent for its probative value on the unconceded credibility of defendant's witnesses, and must be such that no two reasonable minds could honestly differ as to the conclusion.

3. INSURANCE (§ 825—MUTUAL BENEFIT INSURANCE—PROHIBITED EMPLOYMENT — EVIDENCE—QUESTION FOR JURY.

Whether a member of a mutual benefit association died by accident while in a prohibited employment held, under the evidence, for the jury.

4. INSURANCE (§ 787—MUTUAL BENEFIT INSURANCE—PROHIBITED EMPLOYMENT — EVIDENCE—QUESTION FOR JURY.

Where a railroad employé is killed by a train when not on duty or performing any office of his employment, his death is not directly traceable to his employment within a mutual benefit certificate exempting the mutual benefit association from liability in case of the death of a member by accident directly traceable to employment in the occupation of brakeman on a freight train.

5. APPEAL AND ERROR (§§ 1053, 1059) — HARMLESS ERROR—ERRONEOUS RULINGS ON EVIDENCE.

Where the court submitted the case to the jury solely on the theory that the contract relied on was as defendant contended, errors in the admission and exclusion of evidence bearing on what the contract was were not prejudicial to defendant.

Appeal from Hannibal Court of Common Pleas ; David H. Eby, Judge.

Action by Lenora Wolfgram against the Modern Woodmen of America. From a judgment for plaintiff, defendant appeals. Affirmed.

Benj. D. Smith, of Mankato, Minn., and Chas. K. Hart, of Brookfield, for appellant. M. L. Farres and Charles E. Rendlen, both of Hannibal, for respondent.

CAULFIELD, J.

Suit by the widow of William H. Wolfgram, as beneficiary in a benefit certificate issued to her husband by the defendant, a fraternal beneficiary association, on January 10, 1902. The insured died December 13, 1906. The plaintiff had verdict and judgment for the full amount of the certificate and interest, and defendant has appealed.

All the facts necessary for the plaintiff to prove in order to make out a prima facie case were agreed upon by the parties at the trial, though plaintiff also offered proof of them. The defendant was, therefore, put to its sole defense, which was an affirmative one that the insured died by accident "directly traceable to employment'" in the "occupation" of brakeman on a freight train, in which he was engaged, and the certificate exempted the defendant from liability on account of death so occurring. The burden was on the defendant to establish this defense to the reasonable satisfaction of the jury. Queatham v. Modern Woodmen of America, 148 Mo. App. 33, 42, 127 S. W. 651.

Defendant contends, however, and this is its principal contention, that the trial court erred in refusing to direct a verdict for it on this issue as to which it held the burden of proof. To justify our convicting the trial court of error in this respect, the facts necessary to this defense must have been conceded by the plaintiff, either expressly or by necessary implication, or they must have been established by uncontradicted evidence Which did not depend for its probative value upon the unconceded credibility of defendant's witness, and must be such that no two reasonable minds could honestly differ as to the conclusion therefrom urged by the defendant being the correct one. What is the state of the proof in this respect?

The plaintiff expressly or impliedly conceded at the trial that her husband died on December 13, 1906, from injuries received on December 12, 1906, from being run over by one or more cars of a freight train of the Chicago, Burlington & Quincy Railroad Company, and that he was then an employé of said company in the capacity of a freight train brakeman; also, that plaintiff was paid money by said company in settlement of a claim for damages on account of her husband's death. It was not conceded however, that the insured, Wolfgram, was injured during working hours or...