Boillot v. Income Guaranty Co.

• Decision Date: 01 February 1937
• Docket Number: No. 18823.,No. 18846.,18823.,18846.
• Parties: BOILLOT v. INCOME GUARANTY CO.
• Court: Missouri Court of Appeals

102 S.W.2d 132

BOILLOT v. INCOME GUARANTY CO.

No. 18823.

No. 18846.

Kansas City Court of Appeals. Missouri.

February 1, 1937.

Rehearing Denied March 1, 1937.

Appeal from Circuit Court, Sullivan County; Paul Van Osdol, Judge.

Suit by William W. Boillot against the Income Guaranty Company. Judgment for plaintiff, defendant appeals, and the plaintiff cross-appeals.

Judgment affirmed on defendant's appeal, and reversed and remanded, with directions, on plaintiff's appeal.

See, also, 83 S.W.(2d) 219.

Irwin & Bushman, of Jefferson City, Wm. W. Boillot, of Carthage, and A. B. Walker, of Milan, for appellant-respondent Wm. W. Boillot.

Davis & Davis, of Chillicothe, for respondent-appellant Income Guaranty Co.

REYNOLDS, Judge.

This is a suit on an accident insurance policy issued by the defendant to the plaintiff on January 3, 1930, by which the plaintiff seeks to recover a judgment for monthly indemnities provided by said policy at the rate of $100 per month, coming due between January 11, 1933, and September 11, 1935, for alleged total and continuous disability between such dates occasioned by accidental means in which he lost the greater part of his right hand, including the fingers and a part of the thumb thereof. The accident is alleged to have occurred on or about June 11, 1932, in Audrain county, Mo., and during the life of the policy.

The suit was filed in the circuit court of Audrain county and was later transferred by change of venue to the circuit court of Sullivan county, in which court it was finally heard and determined and judgment was rendered for the plaintiff in the sum of $3,003.64, being for monthly indemnities in the sum of $2,683.33 and interest in the sum of $320.31.

At the time that the policy was issued and delivered to him, plaintiff's occupation was that of a piano tuner; and, by the terms of the policy, the defendant, in consideration of premiums paid it and agreed to be paid it by plaintiff, insured plaintiff, under class A, among other things, against loss resulting solely from bodily injuries "effected, directly and independently of all other causes through Accidental Means (excluding self destruction, or any attempt thereat, while sane or insane)," and agreed by part B therein that, if such bodily injuries, independently and exclusively of all other causes, should totally and continuously disable the plaintiff from performing any and every duty pertaining to his occupation, it would pay, subject to part I, beginning with the first day of such disability, a monthly indemnity of $100 for the period of such continuous total disability and, if such disability should necessitate the removal of the plaintiff to a hospital, by part H it further promised to pay in addition to the monthly indemnity the amount expended monthly by him for said hospital charges but not in excess of 50 per cent. of the monthly indemnity. It also provided by part F indemnity for disability resulting from bodily disease and by part G indemnity for loss of time by him in the event he should be quarantined. Indemnities were also provided by parts A, C, D, and E of the policy. The amount of the monthly indemnities provided by part B was fixed by reference therein to a prior provision of the policy which states that the principal sum under the policy is $5,000 and the monthly indemnity is $100.

Part I, to which part B is made subject, provides: "The total of all indemnities under Parts B to H, inclusive, payable on any one claim or payable in the aggregate on all claims arising under said Parts B to H inclusive, shall not be greater than the equivalent of Fifty months of disability indemnity as hereinbefore provided. When the full amount of the aggregate disability indemnity has been paid no further indemnities shall be payable and all insurance under this policy shall cease, except that thereafter the Insured may at his option continue the policy for its death and dismemberment benefits at one-third the then premium, or cancel the same and receive from the Company the premium paid for any unexpired term hereunder."

Part I is modified by an indorsement on said policy of date January 3, 1930, whereby, in consideration of an additional premium embraced in the premium stated in the policy, the defendant agreed that, in case of any disability covered by the policy and originating during the term thereof and before the aggregate indemnity has fully accrued, if the plaintiff should within 90 days after the date of the accrual of the full aggregate indemnity be adjudged by competent authority satisfactory to defendant to be totally and permanently disabled, the defendant would continue to pay so long as plaintiff should live and suffer such permanent, total disability the monthly indemnity provided in the policy, regardless of limitations therein contained as to aggregate indemnity, subject otherwise to all the terms and provisions of the policy.

A modification of part B was also made by indorsement on said policy effective April 3, 1930, that, in consideration of reduced premiums, the defendant should not be liable for the first 30 days of any disability, but that the policy should otherwise remain the same.

Other provisions of the policy will be noted if and as occasion requires.

The petition alleges the issuance and delivery of the policy of date January 3, 1930, in consideration of the payment of certain premiums paid or to be paid by plaintiff, and alleges that it insured the plaintiff continuously thereafter, so long as the quarterly premiums were paid, "in the sum of $100 per month indemnity against the total loss of time resulting from bodily injuries effected during the term of said insurance directly and independently of all other causes through accidental means," and that, if such bodily injuries "independently and exclusively of all other causes totally and continuously disable the insured from performing any and every duty pertaining to his occupation, the company will pay, subject to Part I, beginning with the first day of such disability, a monthly indemnity at the rate of the monthly indemnity hereinbefore specified for the period of such continuance of total disability." It alleges that the occupation of the plaintiff was, at the time such policy was delivered, that of a piano tuner and that his occupation as such continued until the date of the accident complained of; that, on or about June 11, 1932, while said policy was in full force and effect, he, at the county of Audrain, suffered the loss of the greater part of the thumb thereof, effected by accidental means (to wit, the accidental discharge of a shot gun at the time being carried by the plaintiff); that such bodily injuries effected by accidental means as aforesaid, independently and exclusively of all other causes, totally, continuously disabled the plaintiff from performing any and every duty pertaining to his occupation of piano tuner from the time of such accident to the time of the filing of this petition, and that he at the time of the filing of the petition was from said cause so disabled; that plaintiff has performed all of the terms of said contract on his part to be performed, including the payment of the quarterly premiums thereon from the due dates as they became due; that the defendant has paid the hospital bill of the plaintiff necessitated by said injuries, according to the terms of the policy, and has paid plaintiff the indemnities due under the terms of the policy to January 11, 1933, but has refused to pay the monthly indemnities due the plaintiff for the loss of time on account of his said injuries from and since January 11, 1933, to September 11, 1935; that there is due to the plaintiff under the terms of said policy monthly indemnities at the rate of $100 per month to be paid each and every month from January 11, 1933, amounting in all to the sum of $3,200, the last 2 months of which in the sum of $200 the plaintiff remits and waives; that demand for the payment of said sum has been made to the defendant, but it has refused to pay the same; and that it is indebted to plaintiff on account of interest on said monthly indemnities in the sum of $231. It prays judgment for the monthly indemnities in the aggregate amount due on said policy from January 11, 1933, to September 11, 1935, in the sum of $3,000, together with interest on the monthly indemnities as they became due and payable at the rate of 6 per cent. per annum, amounting to $231, and for costs.

The defendant by its answer admits the execution of the policy of the date alleged in the petition and the payment by it of the hospital bills of plaintiff (referred to in the petition) and of all indemnities claimed by him to be due under said policy to and including January 11, 1933, and denies generally all other allegations of the petition. By its answer, it sets up, among other defenses, that plaintiff arrived at the age of 55 years on September 27, 1934, and that, under the policy and additional provision N therein, any indemnity accruing to him on or after said date was automatically reduced one-third, and that plaintiff, if entitled to recover at all, is not entitled to recover for any indemnity accruing after he arrived at the age of 55 years in excess of two-thirds of $100 per month. It sets up the provisions of paragraphs 10 and 14 under the heading, "Standard Provisions," in said policy and the provisions of other paragraphs therein under said heading relating to proof of disability required to be made by the plaintiff and to the denial of any right in plaintiff to maintain any action at law or in equity to recover on said policy prior to the expiration of 60 days after making proof of his disability. It denies that plaintiff had made proof of disability as required by the provisions of said paragraphs and denies that he had performed all of the terms and conditions of the policy required to be performed by him. It sets up that it had furnished plainti...