Boillot v. Income Guaranty Co., No. 24975.

CourtMissouri Court of Appeals
Writing for the CourtBennick
Citation124 S.W.2d 608
PartiesBOILLOT v. INCOME GUARANTY CO.
Docket NumberNo. 24975.
Decision Date07 February 1939
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"Not to be published in State Reports."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,

124 S.W.2d 609

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

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11 practice notes
  • Occidental Life Ins. Co. v. Eiler, No. 11990.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 7, 1942
    ...construed by Missouri decisions. Bonzon v. Metropolitan Life Ins. Co., Mo. App., 143 S.W.2d 336; Boillot v. Income Guaranty Co., Mo.App., 124 S.W.2d 608; Enright v. Hale Petroleum Co., Mo.Sup., 250 S.W. 908; Polski v. City of St. Louis et al., 264 Mo. 458, 175 S.W. 197, and it is accordingl......
  • Se-Ma-No Elec. Co-op. v. City of Mansfield, SE-MA-NO
    • United States
    • Missouri Court of Appeals
    • December 9, 1958
    ...suit comes again in issue, although the second suit is upon a different cause of action.' See Boillot v. Income Guaranty Co., Mo.App., 124 S.W.2d 608, 611. Appellant's right to prevent the alleged competition by the respondents because of the contracts alleged, whether on the theory of impl......
  • Bonzon v. Metropolitan Life Ins. Co., No. 25390.
    • United States
    • Court of Appeal of Missouri (US)
    • October 8, 1940
    ...Bros. Const. Co., Mo. Sup., 178 S.W. 763; Enright v. Hale Petroleum Co., Mo.Sup., 250 S.W. 908; Boillot v. Income Guaranty Co., Mo.App., 124 S.W.2d 608. Unquestionably defendant had the right to take this appeal even though it knew that the construction of the policy it was contending for w......
  • Norval v. Whitesell, No. 61910.
    • United States
    • Missouri Supreme Court
    • September 9, 1980
    ...parties. In re McMenamy's Guardianship, 307 Mo. 98, loc. cit. 110, 270 S.W. 662, loc. cit. 665; Boillot v. Income Guaranty Co., Mo.App., 124 S.W.2d 608, loc. cit. 611. * * * "A 605 S.W.2d 791 fact or question which was actually and directly in issue in a former suit, and was there judiciall......
  • Request a trial to view additional results
11 cases
  • Occidental Life Ins. Co. v. Eiler, No. 11990.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 7, 1942
    ...construed by Missouri decisions. Bonzon v. Metropolitan Life Ins. Co., Mo. App., 143 S.W.2d 336; Boillot v. Income Guaranty Co., Mo.App., 124 S.W.2d 608; Enright v. Hale Petroleum Co., Mo.Sup., 250 S.W. 908; Polski v. City of St. Louis et al., 264 Mo. 458, 175 S.W. 197, and it is accordingl......
  • Se-Ma-No Elec. Co-op. v. City of Mansfield, SE-MA-NO
    • United States
    • Missouri Court of Appeals
    • December 9, 1958
    ...suit comes again in issue, although the second suit is upon a different cause of action.' See Boillot v. Income Guaranty Co., Mo.App., 124 S.W.2d 608, 611. Appellant's right to prevent the alleged competition by the respondents because of the contracts alleged, whether on the theory of impl......
  • Bonzon v. Metropolitan Life Ins. Co., No. 25390.
    • United States
    • Court of Appeal of Missouri (US)
    • October 8, 1940
    ...Bros. Const. Co., Mo. Sup., 178 S.W. 763; Enright v. Hale Petroleum Co., Mo.Sup., 250 S.W. 908; Boillot v. Income Guaranty Co., Mo.App., 124 S.W.2d 608. Unquestionably defendant had the right to take this appeal even though it knew that the construction of the policy it was contending for w......
  • Norval v. Whitesell, No. 61910.
    • United States
    • Missouri Supreme Court
    • September 9, 1980
    ...parties. In re McMenamy's Guardianship, 307 Mo. 98, loc. cit. 110, 270 S.W. 662, loc. cit. 665; Boillot v. Income Guaranty Co., Mo.App., 124 S.W.2d 608, loc. cit. 611. * * * "A 605 S.W.2d 791 fact or question which was actually and directly in issue in a former suit, and was there judiciall......
  • Request a trial to view additional results

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