Adair v. General American Life Ins. Co.

• Decision Date: 09 January 1939
• Docket Number: No. 19293.,19293.
• Parties: ADAIR v. GENERAL AMERICAN LIFE INS. CO.
• Court: Missouri Court of Appeals

124 S.W.2d 657

ADAIR v. GENERAL AMERICAN LIFE INS. CO.

No. 19293.

Kansas City Court of Appeals. Missouri.

January 9, 1939.

Rehearing Denied January 30, 1939.

Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.

"Not to be published in State Reports."

Action by John William Adair against the General American Life Insurance Company on an insurance contract. Judgment for defendant, and plaintiff appeals.

Affirmed.

Crawford & Harlan, of Sedalia, for appellant.

J. R. Burcham, of St. Louis, and Montgomery, Martin & Montgomery, of Sedalia, for respondent.

SPERRY, Commissioner.

Plaintiff, John William Adair, sued defendant, General American Life Insurance Company, on an insurance contract. At conclusion of plaintiff's evidence the court on motion, instructed a verdict for defendant. From the resulting judgment plaintiff appeals.

Plaintiff was an employee of Missouri Pacific Railroad Company, hereinafter known as employer. Some time prior to the date of the injury which was sustained by plaintiff, Missouri State Life Insurance Company issued to employer its group policy of insurance, insuring certain employees of said employer, including plaintiff, against accidental death or injury. It also, in connection therewith, issued an individual certificate to plaintiff. After issuance of the contract, and prior to the commencement of this suit, the liability of Missouri State Life Insurance Company thereunder was assumed by defendant.

While said contract was in effect plaintiff sustained an accidental loss, by severance, of a major portion of his foot. The foot was severed so as to leave only the calcaneum (os calcis), the astragalus, and the scaphoid bones. There are a total of twenty six bones in the foot, and but three were left. Below is a diagram of the bones of the foot, introduced in evidence by plaintiff. We have indicated thereon the point of severance as we have determined same from the evidence.

PLAINTIFF'S EXHIBIT 3

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

We quote from the aforementioned group policy, as follows:

                "Policy No. ADD-501
                        "Missouri State Life Insurance
                                  Company
                               "St. Louis, Mo
                     "(Hereinafter called the Company)
                

does hereby insure during the terms of this Policy the employees of the Missouri Pacific Railroad Company (Hereinafter called the Employer), who are eligible for insurance under the Plan of Insurance hereinafter contained and make written application for such insurance as hereinafter provided, subject to all of the provisions, conditions and limitations hereinafter set forth, against any of the losses enumerated in the Schedule of Losses and Indemnities hereinafter contained * * *

* * * * * *

"Part A.

"Schedule of Losses and Indemnities

* * * * * *

"Accidental Loss of * * * * * * * * * * * * *

"One foot One-half Amount

* * * * * *

"Loss of hands (or hand) and feet (or foot) shall mean loss by severance at or above the wrist or ankle joints (or joint) and loss of sight shall mean total and irrecoverable loss of sight.

* * * * * *

"If any Employee has suffered prior to the date he (or she) is insured hereunder the loss of one hand by severance at or above the wrist-joint or one foot by severance at or above the ankle-joint, or the total and irrecoverable loss of sight of one eye, * * *

"Part B.

"Plan of Insurance

"1. This insurance shall cover, subject to the provisions, conditions, and limitations in this Policy contained:

* * * * * *

"`10. Premium: This contract is issued in consideration of the payment by the Employer of the premium, as herein provided. The premium as to each Employee covered hereunder shall be the sum of twenty cents per month for each $1,000.00 of principal sum of insurance coverage.' * * *

* * * * * *

"`12. Entire Contract. This policy, together with the application of the Employer, copy of which is attached hereto, and the individual application, if any, of the Employees insured hereunder, copies of which will be furnished for attachment hereto, shall constitute the entire contract between the parties hereto. All statements made by the Employer or by the individual Employee shall, in the absence of fraud, be deemed representations and not warranties, and no such statement shall be used in defense to a claim under the policy unless it is contained in a written application.'

* * * * * *"

Next, we quote pertinent portions of plaintiff's certificate, as follows:

                "Missouri State Life Insurance Company
                          Saint Louis, Missouri
                "Group Policy No. ADD-501
                                      Certificate 5115
                

"This is to certify that under and subject to the terms and conditions of a Group Policy of Accidental Death and Dismemberment Insurance, No. ADD-501 issued and delivered to the Missouri Pacific Railroad Company (Hereinafter called the Employer) by the Missouri State Life Insurance Company (Hereinafter called the Company), John William Adair while an Employee of the Employer and during the continuance of said policy, shall, in the manner therein provided be insured for the sum of Two Thousand Dollars (Hereinafter the Entire Amount Payable), * * *

"Accidental Death * * *

* * * * * *

"Dismemberment and Loss of Sight * *

* * * * * *

"Accidental loss of * * * one foot — one-half entire amount payable * * *

* * * * * *

                "Missouri State Life Insurance Co
                "Dated October 4, 1927.
                         "Hillsman Taylor, President."
                

A reading of the two instruments here partially quoted discloses that the contract of insurance, upon which suit must be and is based, is made up of the following: (a) The group policy issued to the employer; (b) the application of the employer; and (c) the application of employee (plaintiff). The group policy and the certificate are so interdependent upon each other as to create a situation where the rights of plaintiff cannot be determined without reference to the group policy. The conditions under which defendant is liable to plaintiff are made to depend, by reference in the certificate, on the conditions stated in the group policy. Indeed, plaintiff's certificate could not issue except upon his application for a certificate under the group policy; and the certificate shows on its face that it was issued thereunder. When and if the group policy should become dead and of no effect (as it could become on failure of employer to pay premiums as provided therein), the certificate automatically became dead. Since the very life of the certificate depended on the life and provisions of the group policy, the various provisions of the latter take precedence over and control the provisions of the former. We are not called on here to pass on a situation where the certificate contains a positive provision so repugnant to and contradictory of the provisions of the group policy as to mislead plaintiff to his injury. No such provision here appears; and no estoppel based on such a provision is pleaded.

If plaintiff can recover he must do so under the provisions of the group policy, issued to the employer for his benefit. Gallagher v. Simmons Hardware Company, 214 Mo.App. 111, 258 S.W. 16. The certificate here in evidence is not a life insurance contract. It is merely an instrument which certifies that a contract of life insurance does exist in the form of a group policy issued by defendant to plaintiff's employer. Such last mentioned instrument is itself the foundation of plaintiff's claim. Steffen v. Equitable Life Assur. Soc., Mo.App., 64 S.W.2d 302, loc. cit. 306. Plaintiff must show that his loss is one defined by and falling within the provisions of the group policy. Hardie v. Metropolitan Life Insurance Company, Mo. App., 7 S.W.2d 746, loc. cit. 747.

Plaintiff contends there is an ambiguity between the provisions of the group policy and those...