Adams v. Metropolitan Life Ins. Co.
| Decision Date | 24 August 1934 |
| Docket Number | No. 5340.,5340. |
| Citation | 74 S.W.2d 899 |
| Parties | CHARLES F. ADAMS, RESPONDENT, v. METROPOLITAN LIFE INSURANCE CO., APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Butler County. — Hon Robert I. Cope, Judge.
REVERSED.
Fordyce, White, Mayne & Williams for appellant.
W.A. Brookshire for respondent.
This action was instituted in the Circuit Court of Madison County, Missouri, returnable to the March term, 1932, and upon change of venue was tried in the Butler County Circuit Court, at its January term, 1933.
The respondent alleged that he was injured on December 18, 1923, while he was in the employ of the St. Joseph Lead Company, at its mine in Flat River, Missouri.
Appellant had previously thereto issued to the employer (Lead Company) a policy of insurance styled Group Insurance 368-G, and thereafter issued to respondent a certificate of insurance, styled 1336, in the sum of $1625, and also a serial certificate number 1336-A, in the sum of $1,000, by which policies respondent alleged that he was entitled to a claim for total and permanent disability, in five annual installments of $561.75 each; and further alleged that during the latter part of 1924 he had made due proof of disability to appellant company, according to the terms and conditions of said insurance contracts.
The verdict and judgment was for plaintiff (respondent) in the sum of $2808.75.
Appellant's answer, amongst other matters, denied that respondent prior to the filing of his action, had made due proof of any claim, to the home office of appellant, as required by the terms and conditions of the said policy of insurance, which terms are set forth in Paragraph 7 thereof, and are as follows, to-wit:
Since in our opinion, the question of due proof, required of respondent to appellant, is the sole and only question to be considered by us, we shall discuss only the evidence relating thereto.
Respondent's testimony was, in substance, as follows:
The testimony of J.A. Knowles, for appellant, was as follows:
So far as the evidence in the entire record is concerned, no notice of any claim in this case was ever given by respondent to appellant, or to any agent or representative thereof.
The evidence is that Knowles, who in 1926 gave respondent the blank form or affidavit to fill out, was the agent of the employer, the Lead Company; however respondent says he never did fill it out, but kept on farming until 1930, at which time he said he sold his farm. Respondent did not bring this suit until the first part of 1932.
Paragraph 7, of the group policy, in suit, shows that appellant contracted and agreed that upon receipt by the appellant company at its home office of due proof that any employee insured thereunder, had become wholly and permanently disabled by accidental injury or disease, so that he will be permanently, continuously and wholly prevented thereby from performing any work for compensation or profit, the company will, in addition to waiving further payments of premiums, also pay to the employee during such disability all obligations therefor, as provided by the policy, that is either yearly or monthly, the first payment to be made six months after due proof of such total and permanent disability.
The record in this case fails to show that any notice of respondent's injury was ever given to appellant previous to the filing of respondent's petition and the service of the same on the appellant company. More than eight years subsequent to the receipt of the injuries by respondent, the first and only proceeding had or taken by him, relating thereto, was the filing of this action in 1932. Nearly three years after he was injured he went to the lead company for the purpose of applying for a job, at which time Knowles, the agent of the lead company, gave him a blank and told him if he wanted to draw the insurance to make out an affidavit. Knowles told him that was necessary before he could recover his insurance, and that he would have to show by medical proof that he was permanently and totally disabled, and gave him a blank form, which respondent received and departed. Respondent examined the statement or affidavit, then told Knowles that he didn't think he would come under any of the things stated in the blank affidavit, and also said at the time that he was not permanently or totally disabled, which conversation occurred a year and a half or more after the injuries had occurred. There was no proof that Knowles was an agent of the insurance company, but on the contrary he stated that he was an employee of the lead company. Nothing in the evidence discloses that notice of the injuries received by respondent in 1923 was ever brought to appellant's notice or knowledge until the year 1932, more than eight years thereafter; and that only by the filing of the petition herein and the service thereof on the appellant.
Attention is directed to the following terms, which are included in the policy.
"And in addition to such waiver will pay to such employee during such disability, in full settlement 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: ... The first installment to be paid six months after receipt of due proof of total and permanent disability." No such notice was ever given prior to this suit.
Appellant's third assignment of error, was that "the court erred in giving plaintiff's instruction No. 1, which submitted to the jury the issue of whether he had made due proof to the home office of the company of total and permanent disability, when the record is not only absolutely devoid of any proof that he did so, but shows affirmatively, from the plaintiff's own lips, that he had not done so."
The only evidence on that subject was, that when respondent went back to the lead company and asked for a job, Knowles gave him a blank affidavit and told him that if he wanted to draw the insurance to make out an affidavit; but respondent said he never did fill out the application. That was in 1926.
Therefore, in our opinion, it was very clearly established that no notice of any kind of the injuries received by respondent, was ever brought to appellant's knowledge, so far as the record in this case is concerned, until the bringing of this suit, in 1932, almost nine years after the cause of action, if any, had accrued.
In 14 Ruling Case Law, Section 102, page 925, occurs the following statement, with reference to the construction of insurance policies:
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