Arnold v. Brotherhood of Firemen & Enginemen
| Decision Date | 03 May 1937 |
| Docket Number | No. 18913.,18913. |
| Court | Missouri Court of Appeals |
| Parties | ERNEST A. ARNOLD, RESPONDENT, v. THE BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN, APPELLANT. |
Appeal from Johnson County Circuit Court. — Hon. Leslie A. Bruce, Judge.
AFFIRMED.
Lamkin James for respondent.
Harold C. Heiss, Edward E. Naber, S.M. Camean and Johnson & Bacon for appellant.
This is a suit on an accident insurance policy issued by the defendant in favor of the plaintiff. There was a verdict and judgment for plaintiff in the sum of $2017.15, plus interest in the sum of $39.32. Defendant has appealed.
The policy provided for a weekly indemnity of $20, for not to exceed 104 weeks, in the event that insured should sustain an accidental visible injury, rendering him "unable to follow his usual vocation."
The facts show that plaintiff was engaged as a locomotive fireman for the Chicago & Alton Railroad Company. On February 28, 1934, while the policy was in full force and effect, a vision glass of the locomotive cab in which plaintiff was working, broke, resulting in a piece of the glass striking him in the left eye. On May 25, 1934, defendant mailed to the plaintiff its check in the sum of $62.85 in payment of disability covering a period of three weeks and one day, beginning with February 28, 1934, to and including March 21, of that year. On the back of the check appeared the following:
This check was indorsed and cashed by the plaintiff without protest.
This suit is to recover weekly indemnity for a period of 104 weeks at $20 per week, less the sum of $62.85 paid by the defendant to the plaintiff covering the period from February 28, 1934, to March 21, 1934.
Defendant insists that its instruction in the nature of a demurrer to the evidence, offered at the close of the entire testimony, should have been given for the reason that the release, appearing on the back of the check, fully released and discharged it from all liability under the policy.
This release was duly pleaded in the answer but plaintiff, in his reply, alleged, among other things, that it was without consideration. After a thorough examination of the evidence we are of the opinion that there was no consideration given for it.
The evidence shows that after plaintiff was injured he notified the secretary of the defendant local lodge at Slater thereof and that defendant mailed to him "some papers and I filled them out and I told them about the accident and everything." The papers that plaintiff filled out and returned to the defendant are not shown in the abstract and we do not know what they were. There does appear a document headed "Attending Surgeon's Statement," signed by Dr. Bellows, who it appears was a physician in the employ of the Chicago & Alton Railway Company. Dr. Bellows stated in this instrument that plaintiff was totally and continuously disabled from performing his usual duties from February 28, 1934, to April 16, 1934, and, in answer to the question, "Has he (insured) fully recovered from his injury?" the doctor answered, "Wound healed — Vision poor." This statement of the doctor is dated April 16, 1934. The letter from the defendant to the plaintiff which accompanied the check, reads as follows:
As before stated, plaintiff cashed the check but he wrote defendant that it had made a mistake as to the time covered by the payment. In reply to this letter defendant, on May 31, 1934, wrote plaintiff, as follows:
There is some discrepancy between the letters and the attending surgeon's statement, in reference to the date at which Dr. Bellows reported the wound to plaintiff's eye had healed. The attending surgeon's statement gives April 16th as the date, whereas, the letters indicate that the doctor had reported that the wound had healed on March 21st. It seems apparent that Dr. Bellows either made another report to defendant or defendant made an error as to the date upon which the wound had healed. However, no point is made in the briefs concerning this discrepancy and we are of the opinion that it is immaterial.
There was no consideration given by defendant to the plaintiff except the sum of $62.85, which covered no more than a period of three weeks and one day of disability. This period began on February 28th and ended on March 21, 1934. Owing to the fact that, at that time, there was no disputed claim there could have been no compromise or settlement of such. Consequently, there was no consideration for the purported release of liability of the defendant to pay for disability after March 21, 1934. [12 C.J., pp. 342, 343; Dodt v. Ins. Co., 186 Mo. App. 168; Miners' & Farmers' Bank v. Am. Bonding Co., 186 S.W. 1139; Chapman v. Ry. Co., 146 Mo. 481; Yancey v. Central Mut. Ins. Ass'n, 77 S.W. (2d) 149.]
However, defendant contends that the plaintiff's reply, itself, admits that the defendant, at the time the check was sent to plaintiff, had denied all liability upon the policy and, therefore, there was a dispute to furnish a basis for a compromise. We think the defendant is in error as to its construction given plaintiff's pleadings.
The petition, itself, alleges that defendant voluntarily paid the sum of $62.85 covering a period from February 28th to March 21, 1934, but denied liability for any subsequent payments. The reply reiterates the allegation of the petition regarding this matter and alleges that defendant admitted liability for the period beginning February 28th and ending March 21, 1934, and paid plaintiff the sum of $62.85 on account of such admitted liability; that after the receipt of the check defendant requested plaintiff to be examined by doctors employed by defendant and required plaintiff to submit evidence to defendant of his disability; that defendant contended that plaintiff had not been injured or disabled so as to bring him under the terms and provisions of the policy.
A fair reading of the pleadings filed by the plaintiff discloses that he was alleging that there was no disagreement as to defendant's liability for the payment actually made by it but that defendant, after making this payment, denied further liability. There is nothing in the record to indicate that, at the time the check was paid by defendant, there had been any claim made by plaintiff for any further payments, or, that defendant was denying liability on account of any claimed further disability or, in fact, any period of disability. There was, therefore, nothing to compromise or settle. "Conflicting claims are essential to the validity of a compromise, one of its essential elements being the existence of a bona-fide dispute or a controversy between the parties. [12 C.J., p. 316.] In order for there to have been a consideration for the release contained on the back of the check it was necessary that there be a settlement of a bona-fide dispute or a doubtful claim. [12 C.J., p. 324.]
Of course, it was unnecessary for plaintiff to tender back the amount he received, in order to bring this suit, as the amount paid to him was upon an admitted liability. This suit does not cover the period for which disability was paid.
However, it is claimed that the demurrer to the evidence should have been sustained because there was no evidence that the injury to plaintiff's eye was such as to disqualify him from pursuing his usual vocation. This contention is based upon a misconception of the testimony of plaintiff's witness, Dr. Calloway. Dr. Calloway did not testify, as defendant contends, that plaintiff had 20-20 vision, which the doctor said was normal. The doctor testified that plaintiff had a scar over the whole pupil of his eye; that the scar "covered more than the dilated pupil;" that the scar that the scar would have "practically the same effect... . as a window shade being pulled over the eye;" that the doctor had had experience in examining men qualifying for work as firemen and that the injury to plaintiff's eye would disqualify plaintiff from firing an engine on a railroad. Of course, the jury could have...
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