Bolton v. Inter-Ocean Life & Cas. Co.
| Decision Date | 01 February 1915 |
| Citation | 172 S.W. 1187,187 Mo.App. 167 |
| Parties | THOMAS M. BOLTON, Respondent, v. INTEROCEAN LIFE AND CASUALTY CO., Appellant |
| Court | Kansas Court of Appeals |
Appeal from Callaway Circuit Court.--Hon. D. H. Harris, Judge.
Judgment affirmed.
Cave & Eversole for appellant.
(1) The court erred in finding for plaintiff, as the verdict is against the law and weight of the evidence as applied to defendant's second defense (failure to give timely notice). Aetna Life Insurance Co. v. Fitzgerald, 165 Ind. 317; Craig v. United States Health & Accident Insurance Co., 80 South Carolina, 151; Meech v. Nat Ac. Soc., 63 N.Y.S. 1008. (2) The court erred in finding for plaintiff, as the verdict is against the law and weight of the evidence as applied to defendant's third defense (release). Wood v. Mass. Mutual Accident Ass'n, 151 N.Y. 94; Conroy v. Equitable Accident Co., 21 R I. 467; Clanton v. Travelers Protective Ass'n., 101 Mo.App. 312. (3) The court erred in refusing to permit witness, Dr. R. N. Crews, to testify concerning facts relative to plaintiff's physical condition in June, 1913 and contained in his report to defendant, made at plaintiff's request, in said month of June, 1913. Elliott v. Kansas City, 198 Mo. 593.
J. R. Baker for respondent.
(1) A jury having been waived by both parties and the cause having been tried by the court and no declarations of law having been asked, given or refused by either party, the judgment of the lower court will stand if there is any substantial evidence to support it. Lumber Company v. Lumber Company, 134 Mo.App. 316; Home Savings Bank v. Fisk, 135 Mo.App. 8. (2) The court did not err in finding against the defendant on its second defense, namely, failure to give timely notice. 1 Cyc. p. 278; 19 Cyc. pp. 865, 967; Brashear v. Patriots, 161 Mo.App. 566; Crenshaw v. Insurance Company, 71 Mo.App. 42; Myers v. Casualty Company, 123 Mo.App. 682; McFarland v. Accident Association, 124 Mo. 204. (3) The court did not err in finding against the defendant on its third defense, namely, release. Cunningham v. Surety Company, 82 Mo.App. 607; Graham v. Casualty Company, 120 Mo.App. 671; Mogan v. Railroad, 3 Mo.App. 721.
--This is an action upon the health feature of a policy of accident and health insurance. It provided for the payment of a monthly indemnity for disability from illness of $ 80, and at that rate for any proportionate part of a month for the number of consecutive days, not exceeding six months, that the insured by reason of such illness, should be necessarily and continuously confined within the house, and therein regularly visited by a legally qualified physician.
The policy was issued April 7, 1913. The insured was ill, within the terms of the policy, from July 10, 1913, to September 25, 1913, a period of two-and-one-half months.
The policy made the application a part of the contract, and was based upon the truth of certain statements made as warranties therein to the effect that insured was in sound bodily health and had not received medical attention during the five years preceding the issuance of the policy, and had never had, during said five years, any trouble from gall stones or bladder disease. It also provided that written notice of any illness must be given to the company at its home office, or to the local agent in the town of insured's residence, within ten days from the date of beginning of disability from illness; and if the insured failed to comply strictly with said notice requirements then all rights under the policy should be forfeited.
The answer pleaded a breach of the two warranties above stated by alleging that for weeks and months prior to his application, and within five years prior thereto, insured was not in sound bodily health but was suffering from a disease of the bladder or disease of gall stones and under the care of a physician for those bodily illnesses. It also pleaded a failure to give written notice within ten days from the date of the beginning of disability. Lastly, the answer pleaded a release from all liability on the policy for all disability which might arise in the future or had arisen in the past from all diseases of the gall bladder or any of the digestive organs.
The reply denied generally, and then pleaded that even if it were true that the said warranties were breached, the defendant had waived same by accepting and receiving the full monthly premiums on said policy after knowledge of the fact that insured was afflicted with said diseases and did not cancel or undertake to cancel the policy until after claim for the illness now in issue was made, and is now estopped from setting up a breach of warranty in the case. The reply to the second defense namely, failure to give notice within ten days, was likewise a general denial, and a plea that even if the facts were true as set out in said second defense, defendant waived all defense it might have had by reason thereof, but had denied all liability whatever under the policy on the ground of the breaches of warranty aforesaid. The third defense, that of a release, was likewise denied generally, and the plea was made that the pretended release was without consideration and that after the execution of the alleged release the defendant continued to exact of, accept, and receive, the full amount of premiums designated and agreed upon in the policy, and there-by waived said defense of release if it had otherwise constituted a defense.
The case was tried without a jury and the court found for plaintiff in the sum of $ 200, which is at the rate of $ 80 per month for two-and-one-half months, the rate provided in the policy for total disability. Defendant has appealed.
With reference to the first defense, that of a breach of the warranties that insured had not within five years prior to the date of the policy been disabled or received medical or surgical attention, and had not had and was not suffering with gall stones or bladder trouble, we do not think there was conclusive evidence of any such breach so as to justify us in declaring a forfeiture as a matter of law. At most it was a question of fact for the court sitting as a jury to determine, and that tribunal having found against defendant upon that issue, we must accept that finding as true. Plaintiff did not admit having such diseases at or prior to the time of the issuance of the policy? There was no evidence showing that the gall stone and bladder trouble was chronic, or of long continued duration. Indeed there was evidence in the report of the physician concerning the sickness sued for, that it was not. Nor was there evidence that these diseases are of such a nature that when they were once shown to exist after the policy was issued they must, of necessity, have existed prior to that time. Nor was there an admission on the part of the plaintiff that he had received surgical or medical attention within the terms and meaning of the policy, which would authorize us to reverse the finding and judgment of the trial court upon the issue involved.
The second defense relied upon is that the insured failed to give written notice within ten days from the date of the beginning of disability from illness. Plaintiff contends this was waived. The disposition of the case on this point requires a short statement of the facts.
It seems that prior to the illness for which this suit is brought plaintiff was disabled from sickness; that plaintiff failed to give ten days written notice of the beginning of that sickness, but nevertheless the company waived notice and settled therefor paying plaintiff for two weeks and a half. The second sickness, within the terms of the policy began, as stated, on July 10. Plaintiff was confined to his bed and was taken to a hospital in St. Louis where an operation was performed on him for gall stones and bladder trouble, and he did not get up until September 25. On July 29th, the company received written notice of this illness. This, of course, was more than ten days after the beginning of the illness. Upon receipt of the notice the company, through its adjuster, wrote the Bolton Jewelry Co. at Fulton, that if Mr. T. M. Bolton's second sickness originated previous to July 19th, there was no claim against the company since written notice was not filed in its office until July 29th. Bolton was at that time not in Fulton but in St. Louis. As soon as Bolton got out of the hospital and returned to Fulton, he wrote defendant, on September 20th, saying he had gotten up from a spell of eleven weeks serious illness including an operation, necessitating a stay of eight weeks in a St. Louis hospital, and asked for the necessary blanks to be filled out for a sick benefit claim. To this the defendant replied on September 30th saying: The "preliminary" mentioned in this letter was the blank forms of proof for which plaintiff had asked.
Upon receipt of these blanks plaintiff went to the trouble and expense of having them made out and sent to the company about the 14th of October. On the 20th of October, the company replied saying: ...
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