WACKERLE 'D. MUT. LIFE INS. C0; 23
Wscxmsns v. Moron. Turn Iss. (10.*
(Circuit C'ourt,_E. D. Mssouri. October 30, 1882.)
1. Lum INSURANCE—·BURDEN or Pnoor. i
In an action by a wife on the policy of insurance taken out on her husband’s
life, the burden of proof is on the plaintiff to prove the death of her husband
and her right to recover.
2. Innsrrrr or PnRsoN—P1zovmc1r or Junr. ,
Where a witness was called who represented himself to be the husband of
the plaintiff, while the plaintiff denied that he was her husband, and the wit-
ness was ignorant of many circumstances in the life of the person whom he per-
sonated, and the testimony adduced in support of his identity was conflicting,
it is the peculiar province of the jury to decide the question of identity from all
the evidence adducedf * p
3. Su.¤z:—Wmou·r or Evromsom.
Where there is a vast conflict of testimony, in which there is a question of
identity to be established, it is for the jury first to consider which witnesses had
the best opportunity and were most likely to know the facts, and second, to
give to those witnesses whose long acquaintance and special opportunities were
such as to enable them to carry in their recollection the identity of the partie- .
ular party, greater weight than those who only casually knew the party.
4. S.mn-Coucrusrvmnsss or Vnnnrcr. V _ c
Where the court alluded to and commented on the evidence sharply against
plaintiffs claim so far as identity depended on the exhumed skeleton of the _
party alleged to have been her husband, and the jury reached-the conclu-
sion that it was the skeleton of her husband, killed in a railroad aceidentas al-
leged, and that the witness representing himself to be her husband was not
what he pretended, which was their exclusive province, the court will not in- i
terfere with the verdict. ~
This was a suit to recover money alleged to be due by the terms
of a policy of insurance upon the life of 'William Wacker1e, deceased, I
issued by defendant for the benefit of plaintiff, his wife; and also to
recover a premium paid by plaintiff to defendant by mistake, after »
the assured’s death. The defendant in its answer denied that the
terms of the policy had been complied with by the plaintiff, and de-
nied also that the assured was dead. The case was tried before a
jury. The testimony was very conflicting. The plaintiff introduced
evidence tending to prove that her husband, the assured, had been
killed by a railroad accident, and that in ignorance of his death she
had subsequently paid a premium to defendant. The defendant
` thereupon placed a witnessupon the stand who swore that he was
William Wacker1e, the plaintiif’s husband, whose life had been in-
sured by the policy sued upon. It was also shown that he had in the
*Reported by·B. F. Rex, Esq , of the St. Louis bar,
 ir