Mutual Sav. Life Ins. Co. v. Alsup

ANDERSON, C. J. The trial court did not err in permitting the amendment of the complaint. It merely changed the date of the policy, did not change the amount, and expressly stated that it was the same policy. There may be some little evidence that there was another policy between the same parties, which is most doubtful, but it was of a different character and much less amount. AVhile the iileading in this case is in short and by consent, we gather from the record that the only defense relied upon was fraud in the procurement of the policy because the condition of the insured’s health, at the time of the issuance of same, had been falsely stated. As to this, we find no statement in the application or otherwise, but the policy contract provides that the insured must be in sound health and alive when the policy is delivered, and must not die from existing disease; that is, death must result from disease contracted more than fifteen days after the issuance of the policy. The burden of proof was upon the defendant to prove these facts,' or either of them. While the proof shows that the insured died of tuberculosis, it utterly fails to show that he was not in sound health when the policy was issued or that the fatal disease was contracted within fifteen days thereafter. The policy was issued October 22, 1928, the insured died in September, 1929. Dr. Coffey attended the deceased the first time, April 1, 1929, and said: “He had tuberculosis at that time, but not so far advanced. I could not tell how far advanced, but the best of my memory from ■the time he was taken sick and the history I got of the ease it was just about a month,” This would indicate that the disease was contracted or developed about the 1st of March, *113 1929, at least four months after the policy was issued. At any rate, the defendant has utterly failed to show that the insured had tuberculosis when the policy was issued or that it developed within fifteen days thereafter. As we view this case, the trial court could have correctly given the affirmative charge for the plaintiff, upon this issue, and the rulings complained of, if error,, were without injury. The judgment of the circuit court is affirmed. ■Affirmed. THOMAS, BROWN, and FOSTER, JJ., concur.