Blair v. Acacia Mut. Life Ins. Co.
| Decision Date | 08 November 1938 |
| Docket Number | 24737 |
| Citation | 121 S.W.2d 193 |
| Parties | THOMAS EDWARD BLAIR, Respondent, v. ACACIA MUTUAL LIFE INSURANCE COMPANY, a Corporation, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court, City of St. Louis, Hon. Ernest F Oakley, Judge.
REVERSED & REMANDED.
This is an action under our Declaratory Judgment Act, Laws of Mo. 1935, p. 218, in which the plaintiff, as the insured under two policies of life insurance, sought to have the court adjudge and decree that he had been totally disabled since October, 1935, within the meaning of the disability benefits incorporated in said policies, and that he was entitled to recover of the defendant the monthly premiums paid on said policies from November, 1935, to and including July, 1936.
The policies in question were both issued by the defendant on October 1, 1934.
The disability benefits, which were attached to the policies as a rider or supplemental contract, and which bear the same date as the policies - October 1, 1934 - provided that upon receipt by the company at its home office of satisfactory proof that the insured had become totally disabled as a result of bodily injury or disease originating after the issuance thereof, and that such disability had existed continuously for a period of six months, the company would, during the continuance of such disability, waive the payment of premiums on such policies commencing with the premium due after the commencement of such disability.
The petition, which was in two counts, alleged that the insured became totally disabled on October 26, 1935, as the result of arthritis, which originated after the issuance of the policies. In the first count plaintiff sought to recover the sum of $ 115.83 as the premiums paid from November 1, 1935, to July 1, 1936, inclusive, on policy No. 344817, and in the second count sought to recover the sum of $ 150.30 as the premiums paid during the same period on policy No. 344978.
The defendant in its answer denied that the insured's disability was the result of a disease which originated after the issuance of the policies and affirmatively alleged that such disability was the result of rheumatism which originated prior to the issuance of the supplementary contracts.
The answer further alleged, as affirmative defenses, that the insured, in his application for the policies and supplementary contracts, stated and represented that he was not then drawing, nor had he previously received, any compensation for illness or injury; that he had never had rheumatism, and that the only medical treatment which he had received or had been under observation for was hemorrhoidectomy in 1929.
It was further alleged in the answer that these statements in the application were false, fraudulent and untrue in that, at the time of said application, and for some time prior thereto, the plaintiff was afflicted with rheumatism; that he had been receiving compensation from the Veterans' Bureau or Veterans' Administration for disability resulting from rheumatism and that he had been under treatment or observation by physicians therefor.
It was also further alleged in the answer that if the insured had been totally disabled from October, 1935, that the rheumatism with which he was afflicted at and prior to his application, and for which he had been receiving compensation from the Veterans' Bureau, was a contributory cause of such disability.
The reply of the plaintiff to the answer was a general denial.
Prior to the trial of the case the defendant tendered and paid into court for plaintiff's use and benefit the sum of $ 25 as a return of the premiums which had been paid under the supplemental contracts or disability rider attached to the policies.
The plaintiff introduced in evidence the policies and supplementary contracts. The policies contained the following provision:
"This policy together with the application therefor, a copy of which is attached hereto and made a part hereof, shall constitute the entire contract. * * *"
In the supplemental contracts or disability riders attached to these policies it was provided:
"This supplementary contract shall be deemed a part of the above numbered policy and the provisions of said policy concerning declarations and representations by the insured * * * are hereby made a part hereof."
In part II of the application for the policies are the following questions and answers of the insured thereto.
Disease
or injury.
Date
No. of Attacks.
Duration.
Hemorrhoidectomy
1929
Any
Name and Address of
Severity
Remaining Effects
Attending Physician.
Mild
No
John C. Bram."
Plaintiff testified that from 1903 until the commencement of his total disability on October 26, 1935, he had been employed continuously by Famous Barr Company in St. Louis; that his position there during the last few years of his employment was that of building superintendent; that upon the date of the issuance of the policies he weighed in the neighborhood of two-hundred pounds, and for many years had worked every day with the exception of a few times when he lost a day or two on account of a cold, and excepting for a period of three weeks in August, 1930, when he was operated upon for hemorrhoids; that in the early part of March, 1935, while he was dealing cards, he ; that in two or three hours "that had gone up into my shoulder and eventually spread all over my body in a short time, and my legs and my feet - I had it from the top of my head to the bottom of my feet; all over my body." He further testified that by dint of effort he was able to keep his employment until October 26, 1935, which was the last day he was able to work.
Plaintiff's wife testified that with the exception of the operation in 1930, plaintiff had worked every day until the commencement of his present disability.
J. H. Brandau, a witness for plaintiff, testified that he was superintendent of Famous Barr Company and had known plaintiff for twenty-four years, and that during all of that time plaintiff was a "big, robust man; he was healthy and strong, and was never complaining."
Dr. J. S. Probstein testified that he was in charge of the medical department of Famous Barr Company and was in the store every day, and had frequently seen plaintiff; that plaintiff always appeared strong and healthy. This witness testified that in his judgment plaintiff was suffering from chronic arthritis, and when asked the question as to whether in his opinion "this arthritis originated at the time the pain hit him in the knuckles," he answered, "Yes, sir. " He further testified that plaintiff was totally incapacitated from performing any work because of his arthritis.
The defendant introduced in evidence various applications or declarations of the insured for a pension and for increase in the amount of his pension, all of which were signed and sworn to by the insured.
The first of these applications is dated October 6, 1922. In that application the insured's statement is as follows:
"That he is suffering from a mental or physical disability of a permanent character, not the result of his own vicious habits, which so incapacitates him from the performance of manual labor as to render him partially unable to earn a support, to-wit, hemorrhoids, chronic constipation, gastritis, disability affecting back from waist to shoulder blades on each side of spine, enlargement of left testicle."
And in an affidavit of the insured, dated October 31, 1922, submitted in connection with that claim, the insured stated:
"It is about six years ago that I first noticed that I was troubled with a disability that affected me in the back on each side of spine, between waist and shoulder blades; chronic constipation first affected me about twelve years ago; gastritis first affected me about six years ago; enlargement of left testicle first manifested itself about twenty or twenty-one years ago; hemorrhoids first affected me shortly after my discharge from the service."
On June 2, 1924, and again on November 28, 1925, the insured in his applications for an increase of his pension stated that he was receiving a pension of $ 12 per month, and that he believed that he was entitled to an increased pension on account of an increase in his disability due to the same ailments or conditions referred to in his application of October 6, 1922.
On October 25, 1929, the insured, in his application for an increased pension, stated that he was receiving a pension of $ 25 per month and that he believed that he was entitled to an increased pension "on account of injury to base of spine and resulting weakness in back and inability to maintain sitting or prone position without pain or discomfort; partial loss of muscular power in left arm and left hand and inability to close fingers over palm of hand; disability affecting left knee; hemorrhoids, gastritis, enlargement of left testicle, injury to left eye, impaired vision."
The insured was examined by Dr. J. C. Creane on behalf of the Bureau of Pensions in connection with the last mentioned application for an increased pension. Dr. Creane, who testified on...
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