Mellerup v. Travelers' Insurance

Rothrock, J. [318] It appears from the pleadings in the case that in the year 188/7 H. C. Mellerup insured his life in the Travelers’ Insurance Company in the sum of one thousand dollars. The written policy by which the insurance was effectuated provided that the said sum was to be paid to the legal representative of the insured or his assignee, upon satisfactory proof of death. Mellerup died in June, 1891, and the plaintiff herein is administratrix of his estate, and seeks by this action to recover the amount of the policy. It is averred in the petition that the written policy is not in the possession or under the control of the plaintiff, but that, as the plaintiff is informed and believes, the same is in tb«* possession of one of the defendants, and “that botii defendants conspired to defeat plaintiff out of the proceeds of said policy.” The answers of the defendants were to the effect that the policy was assigned by Mellerup to the defendant Dean, and that Dean made proper proofs of loss, and was paid the full amount of the insurance. The parties went to trial on the issues, [319] the substance of which is above stated. The plaintiff, in the course of the introduction of evidence,, read to the jury some of the answers to interrogatories in a deposition of the president of the insurance company. These answers are to the effect that the policy was in full force at the time of Mellerup’s death, and that, after his death, payment of loss was made to the assignee in accordance with the provisions of the policy. The plaintiff neither by allegation nor proof in any manner questioned the right of Mellerup to assign the policy. It requires no argument or discussion to demonstrate that the plaintiff had no right to recover upon the evidence which was introduced. The proposition of counsel for the plaintiff is that when it was shown that the policy was in force when Mellerup died, and the plaintiff made proper proofs of loss, a prima facie case was made against the defendants. This, it seems to us, is not correct, when other facts are considered. The plaintiff is claiming to recover upon a policy which they show by their evidence has been paid to an assignee in accordance with the provisions of the policy. It is apparent that the burden was on the plaintiff to show that the defendants conspired to defeat the plaintiff out of the proceeds of the policy. The right to recover was placed upon that ground in the petition, and it was incumbent on the plaintiff to establish that fact. 2 II. A question is made by appellant as to an alleged error of the court in the matter of impaneling the jury, which need not be considered. As the plaintiff did not introduce sufficient evidence to submit the case to a jury, it is wholly immaterial as to whether the jury was properly impaneled or not. [319] III. A motion was submitted with the case to strike from appellant’s abstract a written opinion of [320] the court upon the ruling on the motion to instruct. The ground'of the motion is that the opinion is not part of the record. The motion is overruled. It is desirable that this court may know the reasons upon which the decision of the filial court is founded', and a statement thereof is frequently a very great assistance in the consideration of-The questions presented by the appeal. The judgment of the district court is affirmed.