Boillot v. Income Guaranty Co.

• Decision Date: 07 February 1939
• Docket Number: No. 24975.,24975.
• Citation: 124 S.W.2d 608
• Parties: BOILLOT v. INCOME GUARANTY CO.
• Court: Missouri Court of Appeals

124 S.W.2d 608

BOILLOT v. INCOME GUARANTY CO.

No. 24975.

St. Louis Court of Appeals. Missouri.

February 7, 1939.

Appeal from Circuit Court, Audrain County; William C. Hughes, Judge.

"Not to be published in State Reports."

Action by William W. Boillot against the Income Guaranty Company on a policy of accident insurance. Judgment for plaintiff, and defendant appeals.

Affirmed, and cause remanded, with directions.

Davis & Davis, of Chillicothe, C. W. Armstrong, of Chicago, Ill., and Hay & Flanagan, of St. Louis, for appellant.

Boillot & Teters and H. Tiffin Teters, all of Carthage, and Irwin, Bushman & Buchanan, of Jefferson City, for respondent.

BENNICK, Commissioner.

This is the fifth of a series of actions which plaintiff, William W. Boillot, has been compelled to bring against defendant, Income Guaranty Company, upon a policy of insurance issued by the latter, insuring plaintiff, by occupation a piano tuner, "against loss resulting solely from bodily injuries effected, directly and independently of all other causes, through accidental means".

The policy then provided that if such bodily injuries, independently and exclusively of all other causes, should "totally and continuously disable the insured from performing any and every duty pertaining to his occupation", the company would pay a monthly indemnity of $100 "for the period of such continuous total disability", save only that the company should not be liable for the first 30 days of any disability.

By a permanent disability indorsement to the policy it was provided that if, in the event of any disability covered by the policy and originating during the term thereof and before the aggregate of 50 months of disability indemnity had fully accrued, the insured, within 90 days after the date of the accrual of the full aggregate indemnity, should be adjudged by competent authority satisfactory to the company, to be totally and permanently disabled, the company would continue to pay, so long as the insured lived and suffered such permanent disability, the monthly indemnity provided by the policy, regardless of any limitation as to aggregate indemnity.

On June 11, 1932, while plaintiff was out hunting for sport and recreation, and while still engaged in the occupation of piano tuner, he suffered the loss of the greater part of his right hand, including the fingers and a portion of the thumb, the injury being effected solely through accidental means, that is, as the result of the accidental discharge of a shotgun which he was carrying.

Plaintiff contended that his injury served to totally and continuously disable him from performing any and every duty pertaining to his occupation of piano tuner, and consequently made claim against defendant for the indemnities provided by the policy in the event of total and permanent disability. Defendant refused to pay the claim, and thereafter plaintiff brought an action upon the policy in the Circuit Court of Audrain County, in which action he sued for the aggregate of the indemnities of $100 a month for the period from July 11, 1932, to January 11, 1933, the last due date prior to the filing of his suit. Though the accident occurred on June 11, 1932, the date of July 11, 1932, was necessarily fixed as the first due date for the payment of indemnity in view of the provision of the policy that the company should not be liable for the first 30 days of any disability.

Plaintiff recovered judgment in such action for a sum which included the aggregate of the indemnities sued for together with damages and an attorney's fee allowed him upon a finding by the jury of vexatious refusal to pay, whereupon defendant took its appeal to this court, by which, in due course, the judgment was affirmed. Boillot v. Income Guaranty Co., 231 Mo. App. 990, 83 S.W.2d 219.

Ordinarily in this situation, where the disability was of such a character as necessarily to be permanent, the insurer would accept such final judgment as conclusive upon the question of its liability for payment of all the succeeding indemnities provided by its policy, but not so with defendant, which, for reasons best known to itself, has at all times refused to treat the question of its liability as adjudicated, and instead has elected to compel plaintiff to sue for the recovery of all succeeding indemnities as they come due.

With this the attitude of defendant, plaintiff was thereafter put to the necessity of bringing a second action against defendant, which was likewise brought in the Circuit Court of Audrain County, and in which action he sued for the aggregate of the indemnities due from January 11, 1933, the end of the disability period covered by his first action, to September 11, 1935, the last due date prior to the institution of such second action.

A change of venue was allowed to the Circuit Court of Sullivan County, wherein, upon a trial of the issues to the court alone without the aid of a jury, plaintiff recovered a judgment for the amount of the indemnities which the court found to be due him (though not for the full amount sued for), together with interest thereon.

It appears that in rendering judgment for plaintiff for less than the aggregate of the indemnities sued for computed upon the basis of $100 a month, the court felt compelled to give effect to a clause in the policy which purported to provide that when the insured passed his fifty-fifth birthday (as plaintiff had meanwhile done), all indemnities thereafter accruing under the policy should be automatically reduced one-third.

The result was that both plaintiff and defendant appealed from such judgment to the Kansas City Court of Appeals, defendant from the judgment rendered against it in favor of plaintiff, and the latter from the judgment in so far as it failed to render him a full indemnity of $100 a month after he reached the age of fifty-five years. The appeals were consolidated; and upon the submission of the case, the Kansas City Court of Appeals held, not only that the judgment affirmed by us in the first action (Boillot v. Income Guaranty Company, 231 Mo.App. 990, 83 S.W.2d 219) was conclusive, in an action brought for indemnities subsequently accruing, upon the question that the loss of a part of plaintiff's hand was permanent and that he was still disabled therefrom, but also that the additional or subsequent provision of the policy undertaking to reduce the amount of indemnities payable after the insured's fifty-fifth birthday was repugnant to the remainder of the policy and therefore ineffective to effect such reduction. Consequently, holding properly to the view that no new trial of the case was necessary with all the facts before the court, the Kansas City Court of Appeals remanded the case to the trial court with directions to enter up a judgment for plaintiff, and against defendant, as prayed in plaintiff's petition, that is, for the aggregate of the indemnities due at the rate of $100 a month for the period from January 11, 1933, to September 11, 1935, with interest thereon as directed in the mandate. Boillot v. Income Guaranty Co., 231 Mo.App. 531, 102 S.W.2d 132.

We learn that following the handing down of such opinion, certiorari was applied for by defendant, and refused by the Supreme Court on May 6, 1937.

Despite the positive determination by the Kansas City Court of Appeals that, in an action for indemnities subsequently accruing, our decision in the original case was conclusive upon the question of whether plaintiff had sustained a total and permanent disability within the coverage of the policy, defendant still refused to pay succeeding indemnities as they came due, with the result that plaintiff was thereafter compelled to institute a third action upon the policy — this time in the Circuit Court of Pettis County — in which action he sought to recover the aggregate of the indemnities due for the period from September 11, 1935, the end of the disability period covered by his second action, to January 11, 1936, the last due date prior to the institution of such third action. Again plaintiff recovered judgment, and again defendant took its appeal to the Kansas City Court of Appeals, which in due course affirmed the judgment, but this time with 10% of the amount of the judgment added thereto as damages for vexatious appeal. Boillot v. Income Guaranty Co., Mo.App., 120 S. W.2d 74.

A significant feature of such opinion was the determination by the court that in its decision in the second case (Boillot v. Income Guaranty Co., 231 Mo.App. 531, 102 S.W.2d 132) it had not gone outside the issues when it ruled that our decision in the first action (Boillot v. Income Guaranty Co., 231 Mo.App. 990, 83 S.W.2d 219) was res adjudicata, in an action for indemnities subsequently accruing, upon the issue of whether plaintiff's...