Adams v. Metropolitan Life Ins. Co.

• Decision Date: 07 May 1940
• Docket Number: No. 25286.,25286.
• Citation: 139 S.W.2d 1098
• Parties: ADAMS v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

139 S.W.2d 1098

ADAMS v. METROPOLITAN LIFE INS. CO.

No. 25286.

St. Louis Court of Appeals. Missouri.

May 7, 1940.

Rehearing Denied May 21, 1940.

Writ of Certiorari Granted July 2, 1940.

Appeal from Circuit Court, St. Francois County; Taylor Smith, Judge.

"Not to be reported in State Reports."

Suit by Charles F. Adams against the Metropolitan Life Insurance Company, for total and permanent disability benefits under a group insurance policy. From a judgment for plaintiff, defendant appeals.

Affirmed.

Fordyce, White, Mayne, Williams & Hartman, of St. Louis, and Oliver & Oliver, of Cape Girardeau (Harry Cole Bates, of New York City, of counsel), for appellant.

W. A. Brookshire, of Farmington, for respondent.

HUGHES, Presiding Judge.

The suit is based upon a group policy of insurance and involves a total and permanent disability clause in the policy. On and prior to December 16, 1923, respondent was an employee of the St. Joseph Lead Company at its mine in Flat River, Missouri. Previous to said date appellant had issued to the Lead Company a policy of insurance denominated group insurance 368-G, and to respondent a certificate of insurance being numbered 1336 in the sum of $1,625, and also a certificate of insurance numbered 1336-A, in the sum of $1,000. Clause 7 of the policy of insurance provided as follows:

"Total and Permanent Disability Benefits.—On receipt by the Company, at its Home Office, of due proof that any employee insured hereunder has become wholly and permanently disabled by accidental injury or disease, before attaining the age of sixty years, so that he is and will be permanently, continuously and wholly prevented thereby from performing any work for compensation or profit, the company will waive the payment of each premium applicable to the insurance on the life of such disabled employee that may become payable thereafter under this policy, during such disability, and in addition to such waiver will pay to such employee during such disability, in full payment of all obligations hereunder pertaining to such employee, and in lieu of the payment of insurance as herein provided, such monthly or yearly installments as may be selected by such employee, by written notice to the company, at its Home Office, on the following basis, to wit:

"On the basis of $1,000 of insurance, either

Sixty monthly installments of $18.00, or Twenty annual installments of $67.98, or Fifteen annual installments of $83.90, or Ten annual installments of $116.18, or Five annual installments of $214.00.

"The first installment to be paid six months after receipt of due proof of total and permanent disability."

Respondent sustained personal injuries while at work for the Lead Company on December 16, 1923, which he claimed resulted in total and permanent disability and seeks by this action to recover the full amount for which he was injured and selects that such amount be paid in five annual installments of $561.75 each, or a total of $2,808.75, as provided by said clause 7.

An issue was made as to whether respondent had suffered total and permanent disability and had made due proof thereof, and that question was submitted to the court and determined for respondent. That there was substantial, competent evidence of total and permanent disability resulting while the policy and certificates were in force cannot be questioned. The respondent after his injuries and disease, when shown a blank form for claim, told the assistant employment manager of the Lead Company that he wasn't totally and permanently disabled according to those questions and answers on the blank, and it was shown that he attempted to conduct a farm for several years. While this was proper testimony to be submitted to the trier of the facts, together with all the other testimony, it could in nowise be conclusive against respondent. As much as lawyers and courts have differed on the meaning of the words "total disability" we would scarcely expect this laborer to interpret their meaning. Wherever the question has arisen in adjudicated cases, we have never found where any court or jury have penalized a sick and crippled man for having the desire and will power to keep trying in the face of failure.

There was substantial, competent evidence that plaintiff, on December 16, 1923, suffered an accident in which his right foot was cut, his right ankle fractured, several ribs fractured, and his skull fractured. That he was in the hospital about nine weeks. He testifies his leg has healed but that it "breaks out" once in a while; it bothers him when he walks on it; his foot plays out and he cannot walk on it; he cannot move his toes; the injury to his ribs and lungs bothers him; he can work for an hour and then have to rest 15 or 30 minutes; at times has pains through his back and right lung; when he works it is worse and causes him to cough and have pains in his right lung; he has headaches and at times dizzy spells; his leg cramps at night and he has to get up and rub it, and his hearing is bad; at times he has pains in his bladder and kidneys. That he has done no work except a little on the farm, maybe an hour or two at a time; he has never been able to do a day's work.

There was evidence to the contrary, but that issue was fairly submitted on the evidence and decided against appellant.

The real controversy grows out of the following facts:

On March 5, 1932 respondent filed suit, based on the same disabilities as this suit, in the Circuit Court of Madison County, which case was transferred to the Circuit Court of Butler County and there tried before a jury, and a verdict and judgment given for respondent for the full amount sued for, $2,808.75. In due course an appeal was taken by the defendant to the Springfield Court of Appeals, and on the 24th day of August 1934 that Court reversed the judgment. For further statement of that case see Adams v. Metropolitan Life Ins. Co., 228 Mo.App. 915, 74 S. W.2d 899. Thereafter respondent on November 1, 1934, filed in the Supreme Court its petition for a writ of certiorari, seeking to set aside and quash the said judgment of the Springfield Court of Appeals, and a writ of certiorari was issued. Thereafter on September 7, 1935, the Supreme Court quashed the writ of certiorari for the reason, as shown by its judgment, that relator had failed to comply with the rules of that court.

This suit was filed in the Circuit Court of St. Francois County on August 12, 1935, an amended petition being filed on November 9, 1936, and trial before the court, a jury being waived, on November 18, 1938, resulting in a judgment for plaintiff for the full amount sued for, $2,808.75, from which judgment, after unavailing motions for new trial and in arrest of judgment, defendant appeals.

The defense plead and now relied upon is that the judgment of the Springfield Court of Appeals in the prior suit and the judgment of the Supreme Court quashing its writ of certiorari are res adjudicata as to this case, or that if the doctrine of res adjudicata does not apply, that the cause of action is barred by the Statute of Limitations, Section 861, R.S.1929, Mo.St.Ann. § 861, p. 1139.

Taking these questions in reverse order: If we are going to abide by prior rulings of this court in the cases of Clinton v. Metropolitan Life Ins. Co., 94 S.W.2d 1080; Moss v. Metropolitan Life Ins. Co., 230 Mo.App. 70, 84 S.W.2d 395; and Farmer v. Metropolitan Life Ins. Co., 230 Mo.App. 80, 85 S.W.2d 235, this cause having been filed on August 12, 1935, was not barred by the ten year Statute of Limitations (Section 861). True the total and permanent disabilities occurred December 16, 1923, but the right to sue did not occur until after due proof was made. We must recognize the distinction between when an indebtedness is created, and when the right to enforce payment thereof in the courts is acquired. By the express terms of this contract the insured had no right to sue for or collect his insurance until after having furnished due proof to the Company at its home office that he had become wholly and permanently disabled by accidental injury or disease, and then the first installment to be paid six months after receipt of such due proof. Therefore, plaintiff's disabilities never ripened into a cause of action until he furnished due proof according to the contract of insurance.

Due proof was not furnished to the Company until on and after March 25, 1932, by the filing of the petition and...