The foregoing opinion of BENNICK, C., is adopted as the opinion of the court. The judgment of the circuit court is, accordingly, reversed. Hostetter, P.J., and Becker and McCullen, JJ., concur.
ON MOTION FOR REHEARING AND TO MODIFY. Respondent (plaintiff) has filed a motion for rehearing in which she urges, among other things, that in holding that she made no case for the jury in her action upon the policy in question we have failed to give effect to section 2958, Revised Statutes Missouri, 1929 (Mo. Stat. Ann., sec. 2958, p. 1824), which provides that all instruments in writing made or signed by any person or his agent, whereby he shall promise to pay to any other person any sum of money therein mentioned, shall import a consideration, and be due and payable as therein specified.
We appreciate that this statute applies to policies of insurance so as to be authority for placing the burden of proving nonpayment of premiums upon the insurer in a case where the defense is made that the policy sued on had lapsed for nonpayment of premium. [Smith v. Ohio Millers' Mutual Fire Insurance Co.,339 Mo. 236, 49 S.W.2d 42.] In other words, where the execution and delivery of a policy of insurance is admitted, the same, under the statute, imports a consideration, and if in fact there was no consideration for the policy, *Page 167 then the burden of establishing such defense is upon the insurer who asserts it.
In this case, however, there was no issue of lack of consideration for the group policy sued on, but instead the question to be determined, as we pointed out in the principal opinion, was whether White was insured under the policy at the time of his death on January 16, 1937. Had defendant interposed the defense that the group policy had lapsed for nonpayment of premiums, it would unquestionably have had the burden of proof upon that issue, but with the effectiveness of the group policy admitted, there was no question of its consideration to be determined, and we consequently do no violence to the statute in holding that the burden was upon plaintiff to prove that her husband had died within its coverage, even though, in view of the nature of the particular case, the establishment of that fact depended upon proof that after White had ceased to be an active employee on the pay roll of the Pullman Company, he had thereafter kept his individual insurance in force by the payment of the premiums on his own account during the period of his lay-off.
But plaintiff points out that defendant in any event undertook by its answer to assume the burden of proving affirmatively that the insurance on White's life had terminated on May 31, 1936, for nonpayment of premium, and she asks that we modify our opinion by setting out so much of the pleadings as would show such fact.
Defendant did so plead in its answer, and our mere statement of the fact suffices for plaintiff's purposes without burdening the opinion with extensive quotations from any one or more of the pleadings.
We think, however, that even though defendant did purport to plead its defense affirmatively, such action on its part did not have the legal effect of actually converting the defense into an affirmative one so as to have cast upon defendant the burden of proof upon the issue of whether White was included within the coverage of the policy after May 31, 1936. That issue was an essential part of plaintiff's cause of action, and defendant's purported affirmative defense in reality constituted no more than the allegation of specific facts which, if true, defeated plaintiff's cause of action so as to have been admissible under a general denial.
The burden is always on the plaintiff in any action to prove the facts that will warrant a recovery. [Turner v. National Benevolent Society, 224 Mo. App. 463, 28 S.W.2d 125.] Before plaintiff was entitled to recover in this action, it was incumbent upon her to prove that at her husband's death he was still within the coverage of the policy, and she was not to be relieved of that burden by reason of the fact that defendant had unnecessarily assumed to plead its defense affirmatively, notwithstanding the fact that such defense was in truth *Page 168 one which was entirely founded upon facts necessary to support plaintiff's cause of action.
The commissioner accordingly recommends that respondent's motions for rehearing and to modify be overruled.