Katz v. Union Cent. Life Ins. Co.

• Decision Date: 07 December 1931
• Docket Number: No. 17310.,17310.
• Citation: 44 S.W.2d 250
• Parties: JOE KATZ, RESPONDENT, v. UNION CENTRAL LIFE INSURANCE COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

44 S.W.2d 250

JOE KATZ, RESPONDENT, v. UNION CENTRAL LIFE INSURANCE COMPANY, APPELLANT.

No. 17310.

Kansas City Court of Appeals. Missouri.

December 7, 1931.

Appeal from the Circuit Court of Howard County. — Hon. A.W. Walker, Judge.

AFFIRMED.

Roy D. Williams and R.M. Bagby for respondent.

Lionel Daris for appellant.

ARNOLD, J.

Plaintiff filed suit to recover disability benefits of $300, being monthly payments of $100 each, alleged to be due respectively on May 20, June 20 and July 20, 1930, under the terms of an insurance policy, issued by the appellant on August 31, 1923, and on which plaintiff had paid two annual premiums. There was a verdict and judgment for plaintiff in the sum of $300. Defendant has appealed.

It appears from the record that on April 14, 1925, the plaintiff, Joe Katz, sustained serious accidental injury, resulting from a kick by a mule, by reason of which he was confined in a hospital and underwent two operations. Defendant paid the monthly benefit of $100 per month for five years and one month and then refused to pay more, on the ground that respondent had recovered and was able to perform his usual duties.

The record discloses plaintiff was born in Russia, came to this country at the age of twenty; could neither read nor write the English language. He first was a pack peddler; next worked on Government work, carried rock and was a common laborer. He next bought a 170-acre farm and did his own work on the farm, hiring additional help during harvest season. He had a wife and three children who helped on the farm with the "chores." The farm consisted mostly of grass pasture, with some cultivated land. Plaintiff grew some crops, raised cattle and did some fur trading and trapping. Before his injury he weighed 165 pounds and was a strong, active man. At the time of the trial, he weighed 130 pounds, felt weak and sick, was able to do no labor and had to hire all his work done; he was growing weaker and was not in as good physical condition as a year before. He said he was not qualified to do any other business than farming.

Physicians who treated or examined plaintiff testified he was seriously injured; that he had sustained a ruptured spleen, which had been removed, a misplaced kidney and a ruptured kidney; that his injuries were permanent and would incapacitate him from physical labor; that he had adhesions, was emaciated and apparently was suffering at the time of the trial. Since the injury plaintiff had performed small duties about the farm, such as milking one or two cows, handling small sticks of wood at the time of wood-sawing, driving his car to town; had bought and sold furs and done other light things, but that he had been unable to do any heavy farm work. He denied that he had put up hay or tobacco in the barn. Other witnesses testified the hired help did all the labor and that plaintiff did none. For defendant, there was evidence that plaintiff had put up tobacco, forked hay, ridden a plow and done other farm duties.

The jury found the issues for plaintiff, under the instructions.

The pertinent provisions of plaintiff's policy of insurance are these:

"2. Definition of total and permanent disability. The insured, in event he shall become disabled by accident or disease while this policy is in force, shall receive the benefits hereinafter provided, subject to the following conditions. The disability must be total and permanent and of such a character that the insured is and continuously will be prevented thereby during his life from performing any work, or following any occupation, or engaging in any business, for wages, remuneration or profit, the injuries specified in article 3 alone excepted."

Other provisions relate to the amount of the premium, benefits on disability before age sixty, etc., and it is shown that plaintiff was thirty-nine years of age at the time of the trial.

The first assignment of error is that the verdict is against the evidence and the weight thereof. It is the province of the jury to determine the weight of the evidence, and unless this court can say, as a matter of law, that there is no substantial evidence in the record, in support of the verdict, the judgment of the trial court will not be disturbed.

The next charge of error to be considered is that the trial court erred in refusing to direct a verdict for defendant. The disposition of this charge involves the construction of the quoted provision of plaintiff's policy, defining total and permanent disability.

"Total disability to follow one's usual occupation or employment as used in an accident policy means wholly disabled from performing the usual and customary duties of one's employment, and consequently an insurer is not liable as for total disability where the accident has merely prevented the insurer from accomplishing as much in a day's work as before. But where the insured is incapacitated from performing any substantial part of his ordinary duties a case of total disability is presented, although he is still able to perform a few minor duties. [1 C.J. 463, sec. 163.]

And further: "There is no total disability to transact any and every kind of business pertaining to one's occupation where insured, although unable...