ALLEN, J.
This is an action upon a policy of insurance issued by defendant upon.the life of one William Roedel, deceased. Plaintiff, to' whom the policy was made payable, is the widow of the insured. The cause originated before a justice of the peace, where the plaintiff had judgment, and the defendant app baled to the circuit court.
Two trials have been had in the circuit court, each before the court and a jury; upon the first plaintiff received a verdict at the hands of the jury, which was by the court set aside on the ground that it was against the weight of the evidence; the second resulted in a verdict for plaintiff for the face value of the policy, to-wit, $250, with ten per cent interest and seventy-five dollars- as attorneys fees as fur a vexatious refusal to pay. Judgment was entered accordingly, from which the defendant has duly appealed to this court.
The application for the policy is dated February 6, 1906, and the policy was issued February 21, 1906. The insured died August 13, 1907. The proofs of death offered in evidence by plaintiff showed that the deceased died of phthisis pulmona-ris, and the physician’s- certificate states that, in his opinion, the insured’s health was first impaired eighteen months prior thereto. This certificate, however, shows upon its face- that the physician who made it had not attended or prescribed for the deceased prior to his last illness, and that he first visited the deceased on March 16,1906. In the application for insurance the deceased stated that he was in good health; that he had not, within five years prior thereto, had any sickness, dis ease, etc., and that the last time he had consulted a physician prior thereto was in 1903, for a sprained ankle. The defendant’s physician who examined the insured prior to the issuance of the policy certified [589]*589that he appeared to be in good health, and that the examiner recommended the applicant, without reservation, as being safely insurable.
It-appears that the insured had previously carried a policy of insurance in the defendant company which he had suffered to lapse, and that his desire was to renew the policy, but that he was told by the agent that it would be better to take a new one. The insured was a baseball player, and the evidence discloses that in the latter part of 1905 he came home from Texas, where he had been following this occupation; that upon his return he had a heavy cold and was not feeling well. There is evidence that he recovered from the cold, that his condition improved, and that he appeared to be in good health prior to and at the time of making the application for the insurance and at the time of the issuance of the policy. Such was the testimony of plaintiff and other witnesses in her behalf. There was testimony contra on behalf of defendant. The deceased’s mother testified that he came home from Texas, in September, 1905, because he was sick; that in November of 1905 he had consumption, had a very bad cough, and hemorrhages from time to time, and night sweats; that he continued to grow weaker until his death.
It appears that plaintiff and deceased lived together after the latter returned from Texas until sometime in February 1906, when it seems that they separated, deceased going to his mother’s home. It appears that the mother and this plaintiff were not on good terms; that upon the death of the insured the mother, learning that deceased’s life was. insured in' favor of plaintiff, notified the defendant company to the effect that her son was sick at the time that the policy was issued. She testified that, while the deceased and plaintiff still lived together, and shortly prior to the time that deceased came to live with her. she had a conversation with plaintiff at the latter’.s [590]*590house, in which plaintiff; told her that deceased had ■just been insured, and that plaintiff said that she was very much worried for fear that he would have a coughing spell while the doctor was there examining him. This the plaintiff denied, and her testimony and ■that of other witnesses was to the effect that the injured appeared to be in good health during the time in question.
/ ‘ : .We are ashed to review the ruling of the lower court on the demurrer to the evidence upon the theory that the evidence conclusively shows that the insured was not in good health at the time that the policy was issued, as he represented himself to be, but that he was then suffering from the very disease which produced his death. But there are reasons, why we cannot sustain appellant’s contention in this respect. The burden of proof as to this defense was upon the appellant. [See Frazier v. Insurance Co., 161 Mo. App. 709, 141 S. W. 936; Winn v. Modern Woodmen of America, 157 Mo. App. 1, 137 S. W. 292.] And if the insured was not in good health at the date of the issuance of the policy, his statement in the application to the contrary, and the condition of the policy to which this, defense relates, regardless of all other questions involved, could operate to avoid the policy only in the event that the insured was then suffering from a disease or bodily infirmity which actually contributed to his death; and whether it so contributed was a question for the jury. [See Sec. 6937, Rev. Stat. 1909; Keller v. Ins. Co., 198 Mo. 440, 95 S. W. 903; Frazier v. Ins. Co., supra; Salts v. Ins. Co., 140 Mo. App. 142, 120 S. W. 714.]
As to the. ruling upon the demurrer, learned counsel for appellant contends that the statute above referred to does not destroy or impair the power and duty of a trial court to direct a verdict when the evidence is all one way. And in support of this we are cited to Schuermann v. Ins. Co., 165 Mo. 641, 65 S. W. [591]*591723. But an examination of the opinion in that case will readily disclose that it does not in any manner support this contention. We apprehend that the statute means just what it says, and that the question is one for the determination of the jury, and with which the court has no concern. Such is the plain language of the statute, and so our courts have ruled thereupon.
But even were we at liberty to review the lower court’s ruling on the demurrer, there is another and altogether sufficient reason why that ruling was eminently correct. This is because the evidence touching the issue as to defendant’s state of health at the time the policy was issued was highly conflicting, and the question was, therefore, pre-eminently one for the determination of the jury. It is true that the testimony on behalf of defendant tended to sustain the defense which it sought to make, but on behalf of plaintiff there was much evidence contra.
Appellant lays much stress upon the doctor’s certificate contained in the proofs of death, and particularly upon that portion thereof wherein it was stated that in the physician’s opinion the deceased’s, health first became impaired eighteen months prior to his death. As the deceased died on August 13, 1907, and the policy was issued February 21, 1906, a period of eighteen months prior to his death would reach back to February 13, 1906. But this evidence was by no means conclusive against the plaintiff. [See Frazier v. Insurance Co., supra, l. c. 717; Almond v. Woodmen, 133 Mo. App. 382, 113 S. W. 695.] Furthermore, the physician’s certificate shows upon its face that he had not attended the insured prior to the issuance of the policy, at which time it appears that the insured was thoroughly examined by appellant’s examining physician, who found him in good condition and who unreservedly recommended him as a good risk.
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ALLEN, J.
This is an action upon a policy of insurance issued by defendant upon.the life of one William Roedel, deceased. Plaintiff, to' whom the policy was made payable, is the widow of the insured. The cause originated before a justice of the peace, where the plaintiff had judgment, and the defendant app baled to the circuit court.
Two trials have been had in the circuit court, each before the court and a jury; upon the first plaintiff received a verdict at the hands of the jury, which was by the court set aside on the ground that it was against the weight of the evidence; the second resulted in a verdict for plaintiff for the face value of the policy, to-wit, $250, with ten per cent interest and seventy-five dollars- as attorneys fees as fur a vexatious refusal to pay. Judgment was entered accordingly, from which the defendant has duly appealed to this court.
The application for the policy is dated February 6, 1906, and the policy was issued February 21, 1906. The insured died August 13, 1907. The proofs of death offered in evidence by plaintiff showed that the deceased died of phthisis pulmona-ris, and the physician’s- certificate states that, in his opinion, the insured’s health was first impaired eighteen months prior thereto. This certificate, however, shows upon its face- that the physician who made it had not attended or prescribed for the deceased prior to his last illness, and that he first visited the deceased on March 16,1906. In the application for insurance the deceased stated that he was in good health; that he had not, within five years prior thereto, had any sickness, dis ease, etc., and that the last time he had consulted a physician prior thereto was in 1903, for a sprained ankle. The defendant’s physician who examined the insured prior to the issuance of the policy certified [589]*589that he appeared to be in good health, and that the examiner recommended the applicant, without reservation, as being safely insurable.
It-appears that the insured had previously carried a policy of insurance in the defendant company which he had suffered to lapse, and that his desire was to renew the policy, but that he was told by the agent that it would be better to take a new one. The insured was a baseball player, and the evidence discloses that in the latter part of 1905 he came home from Texas, where he had been following this occupation; that upon his return he had a heavy cold and was not feeling well. There is evidence that he recovered from the cold, that his condition improved, and that he appeared to be in good health prior to and at the time of making the application for the insurance and at the time of the issuance of the policy. Such was the testimony of plaintiff and other witnesses in her behalf. There was testimony contra on behalf of defendant. The deceased’s mother testified that he came home from Texas, in September, 1905, because he was sick; that in November of 1905 he had consumption, had a very bad cough, and hemorrhages from time to time, and night sweats; that he continued to grow weaker until his death.
It appears that plaintiff and deceased lived together after the latter returned from Texas until sometime in February 1906, when it seems that they separated, deceased going to his mother’s home. It appears that the mother and this plaintiff were not on good terms; that upon the death of the insured the mother, learning that deceased’s life was. insured in' favor of plaintiff, notified the defendant company to the effect that her son was sick at the time that the policy was issued. She testified that, while the deceased and plaintiff still lived together, and shortly prior to the time that deceased came to live with her. she had a conversation with plaintiff at the latter’.s [590]*590house, in which plaintiff; told her that deceased had ■just been insured, and that plaintiff said that she was very much worried for fear that he would have a coughing spell while the doctor was there examining him. This the plaintiff denied, and her testimony and ■that of other witnesses was to the effect that the injured appeared to be in good health during the time in question.
/ ‘ : .We are ashed to review the ruling of the lower court on the demurrer to the evidence upon the theory that the evidence conclusively shows that the insured was not in good health at the time that the policy was issued, as he represented himself to be, but that he was then suffering from the very disease which produced his death. But there are reasons, why we cannot sustain appellant’s contention in this respect. The burden of proof as to this defense was upon the appellant. [See Frazier v. Insurance Co., 161 Mo. App. 709, 141 S. W. 936; Winn v. Modern Woodmen of America, 157 Mo. App. 1, 137 S. W. 292.] And if the insured was not in good health at the date of the issuance of the policy, his statement in the application to the contrary, and the condition of the policy to which this, defense relates, regardless of all other questions involved, could operate to avoid the policy only in the event that the insured was then suffering from a disease or bodily infirmity which actually contributed to his death; and whether it so contributed was a question for the jury. [See Sec. 6937, Rev. Stat. 1909; Keller v. Ins. Co., 198 Mo. 440, 95 S. W. 903; Frazier v. Ins. Co., supra; Salts v. Ins. Co., 140 Mo. App. 142, 120 S. W. 714.]
As to the. ruling upon the demurrer, learned counsel for appellant contends that the statute above referred to does not destroy or impair the power and duty of a trial court to direct a verdict when the evidence is all one way. And in support of this we are cited to Schuermann v. Ins. Co., 165 Mo. 641, 65 S. W. [591]*591723. But an examination of the opinion in that case will readily disclose that it does not in any manner support this contention. We apprehend that the statute means just what it says, and that the question is one for the determination of the jury, and with which the court has no concern. Such is the plain language of the statute, and so our courts have ruled thereupon.
But even were we at liberty to review the lower court’s ruling on the demurrer, there is another and altogether sufficient reason why that ruling was eminently correct. This is because the evidence touching the issue as to defendant’s state of health at the time the policy was issued was highly conflicting, and the question was, therefore, pre-eminently one for the determination of the jury. It is true that the testimony on behalf of defendant tended to sustain the defense which it sought to make, but on behalf of plaintiff there was much evidence contra.
Appellant lays much stress upon the doctor’s certificate contained in the proofs of death, and particularly upon that portion thereof wherein it was stated that in the physician’s opinion the deceased’s, health first became impaired eighteen months prior to his death. As the deceased died on August 13, 1907, and the policy was issued February 21, 1906, a period of eighteen months prior to his death would reach back to February 13, 1906. But this evidence was by no means conclusive against the plaintiff. [See Frazier v. Insurance Co., supra, l. c. 717; Almond v. Woodmen, 133 Mo. App. 382, 113 S. W. 695.] Furthermore, the physician’s certificate shows upon its face that he had not attended the insured prior to the issuance of the policy, at which time it appears that the insured was thoroughly examined by appellant’s examining physician, who found him in good condition and who unreservedly recommended him as a good risk. The testimony was by no means all one way, and it was the peculiar province of the jury to determine the mat[592]*592ter in hand. With the conflict of testimony on that issue we have nothing to do. “The genius of our law has wisely and quite relieved an appellate court from that burden, at least. We neither hunger nor thirst after, nor assume, power to disturb the finding of twelve men in the box sanctioned by one on the bench on a question of fact on which the testimony ran pro and con. Theirs (not ours) the duty was to sift and winnow out the true from the false, to believe or disbelieve.” [Westervelt v. Transit Co., 222 Mo. l. c. 334, 335, 121 S. W. 114; Vaughn v. Brewing Co., 152 Mo. App. l. c. 56, 132 S. W. 293. See also Keller v. Insurance Co., supra; Adams v. Woodmen, 145 Mo. App. 207, 130 S. W. 113.]
The cause was submitted to the jury on instructions on behalf of plaintiff which required the jury to find, that, in order to avoid the policy, any representation on the part of the insured in procuring the insurance must not only have been with respect to a matter which contributed to the contingency or event on which the policy was to become due and payable, but must have been made with knowledge of its falsity. We perceive no error in this. The answers made by the insured in his application were -not warranties under our law but representations, and are to be dealt with as such.
We have carefully examined all of the assignments of error with respect to plaintiff’s instructions and find the same to be without merit. Error is assigned on account of the refusal of instructions requested by defendant, some of which were given after being modified by the court, but we can take no notice of such alleged errors for the reason that appellant did not complain thereof in its motion for a new trial.
Finding no reversible error in the record, the judgment should be affirmed. It is so ordered.
Reynolds, P. J., and Nortoni, J., concur.