Ocean Accident & Guarantee Corporation v. Moore

• Decision Date: 13 August 1936
• Docket Number: No. 10545.,10545.
• Parties: OCEAN ACCIDENT & GUARANTEE CORPORATION, Limited, v. MOORE.
• Court: U.S. Court of Appeals — Eighth Circuit

85 F.2d 369 (1936)

OCEAN ACCIDENT & GUARANTEE CORPORATION, Limited, v. MOORE.^*

No. 10545.

Circuit Court of Appeals, Eighth Circuit.

August 13, 1936.

Joseph N. Hassett, of St. Louis, Mo., for appellant.

Maurice P. Phillips, of St. Louis, Mo., for appellee.

Before GARDNER and SANBORN, Circuit Judges, and NORDBYE, District Judge.

GARDNER, Circuit Judge.

This is an action at law brought by appellee as beneficiary in a policy of insurance in which the insured was her husband, John A. Moore. The petition is in two counts. The first seeks recovery for total disability to the insured prior to his death, while the second seeks recovery of the amount agreed to be paid on the death of the insured. Trial to a jury resulted in a verdict for appellee on each count, and from the judgment entered thereon this appeal has been taken. The parties will be referred to as they appeared below.

The policy insured John A. Moore, by occupation a lawyer, against loss or disability resulting directly, independently, and exclusively of all other causes, from accidental bodily injuries. If the injuries should result in death within twelve months from the date of the accident, the principal sum of $15,000 was agreed to be paid to the beneficiary. The policy also provides: "(b) If such injuries shall from the date of accident, continuously and completely disable and prevent the Insured from performing any and every duty pertaining to his occupation, and during the period of such disability shall result in any of the above losses, the Company will pay the fixed indemnity specified therefor, and in addition the weekly indemnity hereinafter provided for the period between the date of the injury and the date of the loss."

The policy also provides that if such injuries disable and prevent the insured from the date of the accident from performing any and every duty pertaining to his occupation, the insurer will pay a weekly indemnity of $50 for the first fifty-two weeks, and if the disability continues beyond fifty-two weeks, weeks, the insurer will increase the weekly indemnity 10 per cent. each additional fifty-two weeks until the increase shall amount to 50 per cent. of the original weekly indemnity. Thereafter, as long as the disability continues, the insurer agreed to pay the original weekly indemnity, plus the increase. The policy also provides that if the injuries continuously prevent the insured, from the date of the accident or immediately following total disability, from performing some material part of the duties pertaining to his occupation, the insured would pay, during such partial disability, not exceeding thirty weeks, a weekly indemnity of 50 per cent. of the amount payable for total disability. The policy also provides that written notice of the injury must be given to the insurer within twenty days after the date of the accident causing the injury, but failure to give such notice within the time provided is not to invalidate any claim if it should be shown not to have been reasonably possible to give such notice, and that notice was given as soon as reasonably possible. In the event of death of the insured, any accrued weekly indemnity is made payable to the beneficiary if surviving the insured. The policy does not cover any injury resulting directly or indirectly from disease.

The policy went into effect July 24, 1930, and premium payments kept it in force until July 24, 1932.

At the conclusion of the testimony, defendant presented a demurrer to the evidence, requesting the court to instruct the jury that on each count of plaintiff's petition, under the pleadings, the law and the evidence, plaintiff was not entitled to recover and the verdict should be in favor of defendant. The court refused so to instruct, but submitted the case to the jury on instructions to which defendant saved certain exceptions. The assignments of error, however, present no claim of error in the court's instructions, and the substantial question presented for our consideration is whether the evidence is sufficient to sustain the verdict.

We do not weigh the evidence, but under the well-settled rule consider the evidence from the standpoint most favorable to the plaintiff because all disputed questions of evidence have been resolved by the verdict of the jury against defendant. Limbeck v. Interstate Power Co. (C.C.A. 8) 69 F.(2d) 249. Assuming, as we must, that the jury has resolved all disputed questions of fact in favor of the plaintiff, they may be stated substantially as follows:

In April, 1931, the insured was about fifty-one years of age. He was a lawyer in active practice in St. Louis, Mo. Prior to April, 1931, he had, with immaterial exceptions, the appearance of being a healthy, vigorous and well-preserved man. On April 13, 1931, while taking his morning exercises, he slipped and fell, striking the floor. From that time on to his death, he was not a well man. It is the injury received from this fall which must be the foundation of the causes of action on the policy. After the fall, he came down stairs with difficulty and had trouble in seating himself. He ate very little breakfast. The son, Randolph Moore, assisted him down the front steps and into his car. After driving down town and parking the car, the son assisted insured in walking. The insured could not get his back straightened up, and took very short steps. He did practically nothing but lie down most of the day. A case set for trial that day was continued. The son, who worked in the law office of insured, looked things up for his father in the books, and read them to him. Insured had a headache, held his head a great deal, could not straighten his back, and his son thought his foot was "draggy." He took the insured home shortly after noon, which was unusual. The following day, the son and insured's wife assisted insured to dress, and the son took his father to the office, where he did about as he had done the preceding day. There was a day or two when the insured did not go to his office. He suffered acutely for about ten days, when his back improved and he was able to walk more normally. After ten days from April 13, insured spent full time at the office up to the night of May 7, 1931, and on May 1 and 2 he tried a case in the Circuit Court of St. Louis. He seemed to his son, who was present and helped, "greatly confused and suffered from a very severe headache throughout. He didn't seem to be able to collect his thoughts, though he did go ahead with the trial of the case." During meal time he lay down in the witness room, and the son brought him a lunch, but he ate little of it. After the trial of the case, he did practically nothing, though he did mail a motion for new trial on May 4, 1931, in the same case, and dictated some letters. He lay down in his office nearly all the time. If some very important individual or something important to his business came in, he would seat himself at his desk and talk to the individual for a few moments, and then would say that he was not feeling well, and the person would leave.

An office associate, R. J. Callahan, testified that he saw the insured about the office between April 13 and May 7, 1931, and noticed his condition; that he seemed to be dragging his leg, and from conversations, witness got the impression that he "was not so good mentally — I had the impression that he was slipping."

Insured complained of headaches, and kept rubbing his right arm. About three days after the fall, he went to an osteopath, who saw insured professionally on April 22, 24, 29, May 4 and 6. The osteopath administered treatment for relief of the right arm. There seemed to be no improvement and he dismissed the case as out of his line. During the treatment, he sent the insured to Dr. Levey for X-ray. Dr. Levey said the insured was limping and complained of pain over the lower part of the back and running down the right leg, and he said he seemed to have an expression of pain on his face. The X-ray disclosed nothing, but no X-ray was made of the head.

On April 25, 1931, insured wrote a letter in which he informed defendant of the accident and that he claimed he was entitled "to weekly indemnity, partly for total disability, and partly for partial disability." On April 30, he signed a notice of accident on a form furnished by defendant, in which he made answer to certain questions as follows:

"Are you totally or partially disabled by reason of such injuries? Yes.

"Totally — For how long approximately? 5 days.

"Partially — For how long approximately? two weeks and still continues."

These answers were in his own handwriting.

It is the contention of defendant that there is no evidence that the injuries from the date of the accident continuously and totally disabled and prevented the insured from performing any and every duty pertaining to his occupation until May 7. The lower court instructed the jury that total disability within the meaning of the policy meant disability to do all substantial and material acts necessary to be done in carrying on plaintiff's occupation of attorney at law, with duties of office, court, and traveling, as distinguished from trivial or incidental acts; that it meant inability to perform all duties necessary to the practical prosecution of the insured's occupation; that if the jury found that the insured could perform, during his lifetime, some trivial, incidental acts connected with the practice of law, with office duties, court duties and traveling in connection therewith, but was unable to perform any and every material and substantial act in the practical prosecution of his profession, they would be warranted in finding that he was totally disabled; but if they found that there were substantial and material acts necessary to be done in carrying on his occupation which the insured could have performed during the period in controversy, they would not be warranted in finding total disability. This instruction was...