REYNOLDS, P. J.
This action was begun before a justice of the peace in the city of St. Louis, on August 9, 1910', upon a policy of insurance issued by the defendant company which is in the usual form of such policies; they have been before this court in several cases so that it is unnecessary to set them out. Plaintiff, before the justice, filed a statement setting out the issue of the policy, that it was in her favor, as wife of Gustav Buchholz, the insured, and that at the time of his death, which occurred May 5, 1910; the policy was in full force, all conditions having been duly performed by the deceased during his lifetime and by the plaintiff after his death; that plaintiff, after the death of her husband, furnished proofs to defendant and demanded payment of the policy, but that defendant vexatiously refused to pay the-policy and denied all liability thereunder. Judgment was prayed for the amount of the policy, sixty-three dollars, with interest from the filing of the suit, ten per cent of the policy as damages, and reasonable attorney’s fees for the alleged vexatious refusal to pay as also for costs. There were no pleadings upon the part of defendant. The trial before the justice resulting in a verdict and judgment for plaintiff, [689]*689defendant appealed to the circuit court where on a trial before the court and jury, a verdict was returned in favor of plaintiff in the sum of $172.49. Judgment followed, from which judgment defendant, interposing a motion for new trial, duly perfected its appeal to our court.
It is contended by learned counsel for the appellant that proofs of death furnished to the insurance company are prima facie evidence of the facts therein stated and are conclusive unless the beneficiary shows that the statements made therein were erroneous or given mistake. It is further contended that the proofs of death furnished by plaintiff when her claim was originally made and introduced in evidence at the trial, showed unquestionably and without doubt that for six months prior to the issuance of the policy in suit, the insured was suffering from serious diseases of the heart and kidneys, and that from the 18th of May, 1908, until the 5th of May, 1910, when he died, he was undergoing treatment for such diseases by a physician, the statement of that physician to this effect accompanying the proofs of death furnished by plaintiff, as also an affidavit by another physician who had attended him in Ms last illness, to the effect that the death of deceased was due to myocarditis, wMch was defined by that physician to mean an inflammatory condition of the heart muscles, as also to nephritis, that being defined to be an inflammatory condition of the kidneys. It is argued that the evidence as to this state of health of the insured was unimpeached and uncontradicted, even'corroborated by the testimony of respondent, and that consequently the contents of the proofs of death offered and submitted by respondent in support of her claim were and must now be taken as conclusive of the facts therein stated. The trouble with this argument is that in rebuttal plaintiff below, respondent here, offered in evidence the certificate of the medical examiner of ap[690]*690pellant, who had examined the insured at the time of his application for the policy and had stated in that certificate that the character of the heart’s action was uniform, free and steady, its sound and rhymth regular and normal, and that there were no indications of disease of that organ; that the personal appearance of the applicant was healthy and that he, the medical examiner, had, on the 18th of October, 1908, “personally seen and examined......the life proposed for insurance, and saw made the signature .... and am of the opinion that said life is in good health, and that said life’s constitution is sound,” this examining physician concluding with the recommendation that the life be accepted as first-class.
With this diverse evidence before it, it became a question for the determination of the jury as to which version was correct. They were the sole judges of this. With this certificate of appellant’s own medical examiner in, it cannot be said that the proof upon which appellant relies was uncontradicted. Even if that had been the case, its credibility, even if uncontradicted, as has been often determined, was a matter for the sole determination of the jury.
It is further argued that a condition in a policy is binding upon the insured and all who claim under him to the same extent as a warranty or representation. Whether that is true or not, we need not discuss and do not decide, in the light of the instructions given at the instance of defendant. At its instance the court gave these two instructions:
“3. The court instructs the jury that if you find and believe from the evidence that the policy of life insurance which is the basis of this suit was issued upon an application in writing made by Gustav Buchholz, and that in such application the said Gustav Buchholz denied that he had any disease or diseases of the heart or kidneys, and that, as a matter of fact at the time such application was made he was then suffering from [691]*691such, disease or diseases, and that the same or either of them caused or contributed to cause his death, then plaintiff is not entitled to recover and your verdict will be in favor of defendant. ’ ’
“4. The court instructs the jury that if they find and believe from the evidence that at the time the policy in suit was delivered to Gustav Buchholz he was not in good health,' but then was suffering from diseases known as myocarditis or nephritis, or either of them, and that such diseases or either of them caused or contributed to cause his death, then plaintiff is not entitled to recover and your verdict will be in favor of defendant. ’ ’
Without committing ourselves as to whether they were correct or not, it is sufficient to say that as the appellant asked these instructions and as they were given at its instance, it certainly is bound by them. They submitted to the jury, as a question of fact for their determination, whether, on the evidence in the case, the “conditions” or “warranties,” as they are called by appellant, had been broken, and whether the death of the insured fell within them. Whether, therefore, they were warranties, representations or conditions, the appellant, by the instructions it asked, had the full benefit of them.
The fourth point made in the nature of an assignment of error is that the first instruction given to the jury at the instance of plaintiff, is erroneous in that it requires the jury to find their verdict for plaintiff in one entire sum, it being claimed that it is the duty of the court to enter its judgment for the aggregate sum found in the verdict of the jury but that the verdict itself must specify the items making up the aggregate. In support of this section 7068, Revised Statutes 1900, and Jones v. Prudential Ins. Co., 173 Mo. App. 1, 155 S. W. 1106, are cited. This section (7068) was construed by our court in Jones v. Insurance Co., supra, and it was there held that the jury should find separately in [692]*692a case of this kind in fixing the amount to be recovered, specifying how much of the recovery was in the nature of á penalty or for punitive damages. But our court there held that an error of this kind was not reversible error. On the authority of that decision we rule this point against appellant.
The fifth assignment of error is practically to the same effect and is ruled on in like manner.
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REYNOLDS, P. J.
This action was begun before a justice of the peace in the city of St. Louis, on August 9, 1910', upon a policy of insurance issued by the defendant company which is in the usual form of such policies; they have been before this court in several cases so that it is unnecessary to set them out. Plaintiff, before the justice, filed a statement setting out the issue of the policy, that it was in her favor, as wife of Gustav Buchholz, the insured, and that at the time of his death, which occurred May 5, 1910; the policy was in full force, all conditions having been duly performed by the deceased during his lifetime and by the plaintiff after his death; that plaintiff, after the death of her husband, furnished proofs to defendant and demanded payment of the policy, but that defendant vexatiously refused to pay the-policy and denied all liability thereunder. Judgment was prayed for the amount of the policy, sixty-three dollars, with interest from the filing of the suit, ten per cent of the policy as damages, and reasonable attorney’s fees for the alleged vexatious refusal to pay as also for costs. There were no pleadings upon the part of defendant. The trial before the justice resulting in a verdict and judgment for plaintiff, [689]*689defendant appealed to the circuit court where on a trial before the court and jury, a verdict was returned in favor of plaintiff in the sum of $172.49. Judgment followed, from which judgment defendant, interposing a motion for new trial, duly perfected its appeal to our court.
It is contended by learned counsel for the appellant that proofs of death furnished to the insurance company are prima facie evidence of the facts therein stated and are conclusive unless the beneficiary shows that the statements made therein were erroneous or given mistake. It is further contended that the proofs of death furnished by plaintiff when her claim was originally made and introduced in evidence at the trial, showed unquestionably and without doubt that for six months prior to the issuance of the policy in suit, the insured was suffering from serious diseases of the heart and kidneys, and that from the 18th of May, 1908, until the 5th of May, 1910, when he died, he was undergoing treatment for such diseases by a physician, the statement of that physician to this effect accompanying the proofs of death furnished by plaintiff, as also an affidavit by another physician who had attended him in Ms last illness, to the effect that the death of deceased was due to myocarditis, wMch was defined by that physician to mean an inflammatory condition of the heart muscles, as also to nephritis, that being defined to be an inflammatory condition of the kidneys. It is argued that the evidence as to this state of health of the insured was unimpeached and uncontradicted, even'corroborated by the testimony of respondent, and that consequently the contents of the proofs of death offered and submitted by respondent in support of her claim were and must now be taken as conclusive of the facts therein stated. The trouble with this argument is that in rebuttal plaintiff below, respondent here, offered in evidence the certificate of the medical examiner of ap[690]*690pellant, who had examined the insured at the time of his application for the policy and had stated in that certificate that the character of the heart’s action was uniform, free and steady, its sound and rhymth regular and normal, and that there were no indications of disease of that organ; that the personal appearance of the applicant was healthy and that he, the medical examiner, had, on the 18th of October, 1908, “personally seen and examined......the life proposed for insurance, and saw made the signature .... and am of the opinion that said life is in good health, and that said life’s constitution is sound,” this examining physician concluding with the recommendation that the life be accepted as first-class.
With this diverse evidence before it, it became a question for the determination of the jury as to which version was correct. They were the sole judges of this. With this certificate of appellant’s own medical examiner in, it cannot be said that the proof upon which appellant relies was uncontradicted. Even if that had been the case, its credibility, even if uncontradicted, as has been often determined, was a matter for the sole determination of the jury.
It is further argued that a condition in a policy is binding upon the insured and all who claim under him to the same extent as a warranty or representation. Whether that is true or not, we need not discuss and do not decide, in the light of the instructions given at the instance of defendant. At its instance the court gave these two instructions:
“3. The court instructs the jury that if you find and believe from the evidence that the policy of life insurance which is the basis of this suit was issued upon an application in writing made by Gustav Buchholz, and that in such application the said Gustav Buchholz denied that he had any disease or diseases of the heart or kidneys, and that, as a matter of fact at the time such application was made he was then suffering from [691]*691such, disease or diseases, and that the same or either of them caused or contributed to cause his death, then plaintiff is not entitled to recover and your verdict will be in favor of defendant. ’ ’
“4. The court instructs the jury that if they find and believe from the evidence that at the time the policy in suit was delivered to Gustav Buchholz he was not in good health,' but then was suffering from diseases known as myocarditis or nephritis, or either of them, and that such diseases or either of them caused or contributed to cause his death, then plaintiff is not entitled to recover and your verdict will be in favor of defendant. ’ ’
Without committing ourselves as to whether they were correct or not, it is sufficient to say that as the appellant asked these instructions and as they were given at its instance, it certainly is bound by them. They submitted to the jury, as a question of fact for their determination, whether, on the evidence in the case, the “conditions” or “warranties,” as they are called by appellant, had been broken, and whether the death of the insured fell within them. Whether, therefore, they were warranties, representations or conditions, the appellant, by the instructions it asked, had the full benefit of them.
The fourth point made in the nature of an assignment of error is that the first instruction given to the jury at the instance of plaintiff, is erroneous in that it requires the jury to find their verdict for plaintiff in one entire sum, it being claimed that it is the duty of the court to enter its judgment for the aggregate sum found in the verdict of the jury but that the verdict itself must specify the items making up the aggregate. In support of this section 7068, Revised Statutes 1900, and Jones v. Prudential Ins. Co., 173 Mo. App. 1, 155 S. W. 1106, are cited. This section (7068) was construed by our court in Jones v. Insurance Co., supra, and it was there held that the jury should find separately in [692]*692a case of this kind in fixing the amount to be recovered, specifying how much of the recovery was in the nature of á penalty or for punitive damages. But our court there held that an error of this kind was not reversible error. On the authority of that decision we rule this point against appellant.
The fifth assignment of error is practically to the same effect and is ruled on in like manner.
The sixth assignment of error is that, assuming that there is contained in the verdict of the jury an allowance for attorney’s fee in the sum of $100, the allowance “in this case was unreasonable, unjust and highly inequitable, and poisons the verdict with such bias and prejudice as to render the same void. ” It is claimed in support of this, that it has been the uniform holding in this State that when the evidence preponderated against the verdict so as to show that the same was the result of either partiality, prejudice or passion, the appellate court will interfere and vacate the verdict. There is no doubt of this. The trouble, however, is in its application to the case at bar. There was only one witness examined as to the value of the professional services in the case. That witness was subjected to a very searching and vigorous cross-examination and testified that even having in view the fact that only sixty-three dollars and interest and costs were involved, he considered that $100' would be a reasonable amount to allow for services before the justice as well as in the circuit court. This witness, an attorney of a number of years ’ practice, concluded that he would say that $100 would be a reasonable charge. Asked what he had to say in regard to a charge of fifty dollars, he said that “if you take into consideration the amount involved, take that as an additional factor, fifty dollars would be a very reasonable charge.” In the light of this testimony the jury were warranted in accepting the higher amount.
[693]*693There was evidence in the case tending to show that the refusal to pay was vexatious. Hence the plaintiff brought herself within the provisions of the statute, section 7068, Revised Statutes 1909, as amended by Act of March 30, 1911 (Acts 1911, p. 282), allowing not to exceed tgn per cent damages on the amount of the policy, also a reasonable attorney’s, fee, in addition to the amount of the policy and interest, for vexatious refusal to pay.
These are all the points for reversal made by learned counsel for appellant. We find them untenable. The judgment of the circuit court must be and is affirmed.
Nortoni and Allen, JJ., concur.