Bonzon v. Metropolitan Life Ins. Co.

• Citation: 143 S.W.2d 336
• Decision Date: 08 October 1940
• Docket Number: No. 25390.,25390.
• Court: Missouri Court of Appeals
• Parties: BONZON v. METROPOLITAN LIFE INS. CO.

143 S.W.2d 336

BONZON v. METROPOLITAN LIFE INS. CO.

No. 25390.

St. Louis Court of Appeals. Missouri.

October 8, 1940.

Rehearing Denied October 22, 1940.

Appeal from St. Louis Circuit Court; Eugene J. Sartorius, Judge.

"Not to be reported in State Reports."

Action by Felix E. Bonzon against the Metropolitan Life Insurance Company to recover disability benefits provided for in a life insurance policy supplemented by a contract attached thereto. From a judgment for the plaintiff, the defendant appeals.

Affirmed, with 10 per cent. added to the judgment as damages for vexatious appeal.

Fordyce, White, Mayne, Williams & Hartman and Wm. H. McBratney, all of St. Louis (Harry Cole Bates, of New York City, of counsel), for appellant.

William H. Allen, Alexander Kerckhoff, and Daniel M. Kerckhoff, all of St. Louis, for respondent.

McCULLEN, Judge.

This suit was brought by respondent, as plaintiff, against appellant, as defendant, to recover disability benefits provided for in a life insurance policy supplemented by a contract attached thereto. A trial before the court and jury resulted in a verdict for plaintiff. After a remittitur of a small sum, a judgment was entered in favor of plaintiff against defendant in the total sum of $1,049.19, which included monthly income disability benefits, together with interest thereon and damages for vexatious refusal of defendant to pay. Also included in the above total amount was $78.13, representing premiums paid by plaintiff during the period of disability, and $350 allowed plaintiff as attorney's fees. After an unavailing motion for new trial, defendant duly appealed.

Defendant contends in this court that the evidence conclusively shows that plaintiff never suffered total and permanent disability; and that its demurrers at the close of plaintiff's case and at the close of the entire case should have been sustained by the trial court. Opposing defendant's contention plaintiff contends that, under the language of the entire contract and the undisputed evidence adduced by him showing that he was totally disabled for a period of fourteen months as the result of bodily injuries whereby he was prevented, during that period, from performing any work for compensation or profit, he was entitled to recover the amount of the monthly installments for such period, and was also entitled to recover back the premiums which he had paid during that period on the policy and on the two supplementary contracts attached thereto.

Plaintiff's Exhibit A is the policy of insurance issued by defendant on the life of plaintiff in the sum of $3,247. Plaintiff's Exhibit A-1 is a supplementary contract attached to and made a part of Exhibit A. Said supplementary contract provides that, upon receipt by the defendant company at its home office of due proof on forms furnished by the company that the insured has, while the policy and supplementary contract are in full force and prior to the anniversary date of the policy nearest to his sixtieth birthday, "become totally and permanently disabled, as the result of bodily injury or disease occurring and originating after the issuance of said Policy, so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit, and that such disability has already continued uninterruptedly for a period of at least three months, it will, during the continuance of such disability, (1) Waive the payment of each premium falling due under said Policy and this Supplementary Contract, and, (2) Pay to the insured, or a person designated by him for the purpose, or if such disability is due to, or is accompanied by, mental incapacity, to the beneficiary of record under said Policy, a monthly income of $10 for each $1,000 of insurance, or of commuted value of instalments, if any, under said Policy."

The supplementary contract further provides: "Notwithstanding that proof of disability may have been accepted by the Company as satisfactory, the insured shall at any time, on demand from the Company, furnish due proof of the continuance of such disability, but after such disability shall have continued for two full years the Company will not demand such proof more often than once in each subsequent year. If the insured shall fail to furnish such proof, or if the insured shall be able to perform any work or engage in any business whatsoever for compensation or profit, the monthly income herein provided shall immediately cease, and all premiums thereafter falling due shall be payable according to the terms of said Policy and of this Supplementary Contract."

The supplementary contract contains a number of other provisions not necessary to be set forth here as they are not involved in this appeal.

The evidence shows that, at the time of the issuance of the policy and of the supplementary contract, defendant also issued to plaintiff another supplementary contract, which was introduced in evidence as plaintiff's Exhibit A-2. It is an accidental death benefit contract attached to the original policy and made a part thereof. This accidental death benefit contract is involved only because of the provision contained therein for the waiver of the payment of premiums as a result of disability.

The evidence shows without dispute that plaintiff paid the premiums on the insurance policy and on the two supplementary contracts up to the time of the trial. It is not disputed that, on July 23, 1933, plaintiff sustained severe injuries while driving a milk wagon for the Pevely Dairy Company; that he sustained a fracture of the left side of the pelvis, the left femur having been driven into the pelvis through the socket; that there were two fractures on the right side of the pelvic bone; that he was in a plaster cast until September 6, 1933, and did not leave the hospital until October 15, 1933, and was thereafter treated at his home. It is not disputed that he was totally disabled from performing any work for compensation or profit for a period of a little more than fourteen months ending September 30, 1934, after which he was unable to do the work which he had been formerly doing for his employer but was given employment doing a different type of work.

The evidence shows that, on November 18, 1933, plaintiff notified defendant of his injury and presented to defendant proofs of his total disability. The proofs consisted of his own statement, the certificate of his employer and the certificate of Dr. Van Raalte. On December 14, 1933, defendant, in writing, declined to pay plaintiff anything, stating in its letter that it did not appear that plaintiff would be "permanently totally prevented from performing all work", and advising plaintiff to continue the payment of premiums. The evidence further shows that later plaintiff, through Mr. Ford Thompson, an attorney, made demand on defendant for payment of the disability benefits but that defendant again refused to pay. On September 22, 1937, plaintiff again made demand upon defendant for payment, this time through Mr. Daniel M. Kerckhoff, one of his present counsel. On October 5, 1937, defendant, in a letter addressed to Mr. Kerckhoff, stated:

"We find that during the latter part of 1933 we considered claim for total and permanent disability benefits under the captioned policy, but that we were then unable to allow benefits for the reason that total and permanent disability within the meaning of the disability agreement was not satisfactorily established.

"If it is contended that Mr. Bonzon is now totally and permanently disabled we shall be very glad to receive proofs for consideration. Enclosed you will find one of our Form 0345 for completion by the individuals named thereon including Mr. Bonzon and the present attending physician. In the meantime we shall make arrangements to have your client examined by a Company examiner."

The forms for proof furnished by defendant were filled out by plaintiff, his employer and Dr. Albrecht, and stated that, as a result of his injuries, plaintiff had been totally disabled and thereby prevented from performing any work for compensation or profit from July 23, 1933, to September 30, 1934. These proofs were forwarded to defendant by plaintiff's counsel, Mr. Kerckhoff, on October 28, 1937, accompanied by a letter wherein Mr. Kerckhoff called defendant's attention to the decision and opinion in the case of Laupheimer v. "Northwestern" Mutual Life Ins. Co., 224 Mo.App. 1018, 24 S.W.2d 1058, as showing the interpretation of the...