ON MOTION NOB BEHEABING.
Rombauer, P. J.The plaintiff, while conceding that the rule stated in American Ins. Co. v. Neiberger, 74 Mo. 167, when applied to the facts of this case, is fatal to his recovery, claims a rehearing on the ground that that case has been overruled by later decisions of the supreme court. He cites a number of subsequent cases, all of which we have carefully examined. We fail to discover that the Neiberger case has been overruled in any of them, either expressly or by implication. As that decision under the constitution is binding upon us, any argument that that case was not well considered by the supreme court, and that it is in conflict with the law in other jurisdictions, is necessarily precluded.
We wish, however, to state more pointedly what we have intimated in our former opinion — that, even if the Neiberger case were out of the way, the plaintiff under the evidence in the record is not entitled to the relief prayed for, and granted by the trial court. His claim of fraud and mistake rests upon his own unsupported evidence, which on every material point is contradicted by .the person who wrote the application, and who at the date of the trial was, as the record shows, a wholly disinterested witness. The preponderance of evidence, therefore, on the controlling question involved was with the defendant and not with the plaintiff, and that fact of itself, under elementary rules applicable to equity proceedings of this character, is sufficient to debar him of recovery.
The motion for rehearing is overruled.
Judge Biggs concurs.v