Brown v. Mutual Life Ins. Co. of New York

• Decision Date: 07 May 1940
• Docket Number: No. 25186.,25186.
• Citation: 140 S.W.2d 91
• Parties: BROWN v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: Missouri Court of Appeals

140 S.W.2d 91

BROWN v. MUTUAL LIFE INS. CO. OF NEW YORK.

No. 25186.

St. Louis Court of Appeals. Missouri.

May 7, 1940.

Rehearing Denied May 21, 1940.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

"Not to be reported in State Reports."

Action by Madora Brown against the Mutual Life Insurance Company of New York on the total and permanent disability benefit clauses of a life policy. From a judgment for plaintiff, defendant appeals.

Judgment reversed and cause remanded with directions that a new judgment be entered in favor of plaintiff on condition that plaintiff file a remittitur, and otherwise judgment reversed and cause remanded for new trial.

Jones, Hocker, Gladney & Grand, of St. Louis, May & May, of Louisiana, and Vincent L. Boisaubin, of St. Louis, for appellant.

Rendlen, White & Rendlen, of Hannibal, and F. D. Wilkins, of Louisiana, for respondent.

HUGHES, Presiding Judge.

This is an action based on the total and permanent disability benefit clauses of a policy of life insurance for $1,000 issued on March 3, 1919, by the defendant to the plaintiff, and was instituted by plaintiff on June 17, 1938, in the Circuit Court of Pike County, and tried before a jury, resulting in a verdict and judgment for plaintiff in the sum of $347.62. Defendant appeals.

The provisions of the policy important to a determination of this case are as follows:

"Benefits in the Event of Total and Permanent Disability Before Age 60.

"When such benefits take effect. — If the Insured, after payment of premiums for at least one full year, provided all past due premiums have been duly paid, shall before attaining the age of sixty years at nearest birthday and while this Policy is in full force furnish due proof to the Company at its Home Office that he has become totally and permanently disabled by bodily injury or disease, so that he is, and will be, permanently, continuously and wholly prevented thereby from performing any work for compensation, gain or profit, or from following any gainful occupation, and that such disability has then existed continuously for not less than sixty days, the Company will grant the following benefits.

"Benefits.

"1. Waiver of Premium. — The Company will, during the continuance of such disability, waive payment of each premium as it thereafter becomes due, commencing with the first premium after receipt of said due proof of such disability.

"2. Income to Insured. — One year after the anniversary of the date of issue of this Policy next succeeding the receipt of said due proof, the Company will pay to the Insured, if then living and such disability still continue, a sum equal to one-tenth of the face amount of the Policy, (but not including dividend additions) and a like sum on each such anniversary thereafter, if the Insured be then living and such disability still continue."

On August 21, 1934, while plaintiff and a young lady companion were cleaning clothes with cleansing fluid, the same exploded and both were severely burned. Plaintiff's companion died from the effects of her burns shortly thereafter.

In as much as the questions raised relate solely to, first, whether plaintiff did suffer total and permanent disability within the meaning of the policy, and, second, when due proof was furnished to the Company, it will be necessary to state at some length the evidence relating to those questions, in order to have a full understanding of the case.

Plaintiff, a single woman, 40 years of age, had been employed by F. D. Wilkins, a lawyer, for 16 years prior to the date of her injuries on August 21, 1934, as his secretary and stenographer, and work incident to a fire insurance agency conducted by her employer, and she also did clerical work for others who required her services. She was also a notary public. She was in good health, and was an efficient stenographer and secretary, for which work she had fitted and prepared herself. Mr. Wilkins paid her $18 per week for her services to him.

After her injuries she was taken to a hospital, where she remained under treatment and care of her doctor and nurses until December 7, 1934, when she was removed to the home of her brother in an adjoining county. She was under treatment of her doctor for more than a year after she was injured. She returned to Mr. Wilkins office in September, 1935, since which time he has paid her from $8 to $10 a week for her services. The nature and severity of her injuries is stated by Dr. Eric P. Cunningham, as follows: "I treated plaintiff for severe burns beginning on August 21, 1934, and until the following July or August; that from August 21, 1934, until December 7, 1934, she was in the hospital; that her burns were severe and covered the larger part of the patient's body; that the entire surface of her hands and arms was burned, and also other portions of her body; that the healing of the skin over the burns, or scar tissue, limited the use of the parts affected, diminished the acuteness of her hearing to some extent, and limited the motion of her elbows, particularly the left; that free movement of her left elbow was limited 10 per cent and free movement of the other elbow was limited 5 per cent; that this was a permanent limitation; that the scar tissue on her hands prevents the complete flexing or closing of the fingers; that she lacks possibly three-quarters of an inch of being able to touch her fingers to her palm, due to the tightening of the skin; that this condition is permanent; that the burns on her legs also decrease the active use thereof; and that her nervous system has not yet entirely recovered from the accident; that the shock to her nervous system and the impairment of her hearing decreases her efficiency."

Three other doctors, two of whom were appointed by the Court to examine plaintiff, described her injuries to the same effect; they were all permitted to give their opinions as to the extent plaintiff's efficiency had been impaired by her injuries, which opinions ranged from 30 per cent to 60 per cent impairment.

Plaintiff's employer, Mr. Wilkins, described the manner of her work since her return to his office, stating: "That she did her work with apparent difficulty and under a handicap and less efficiently than formerly; that her speed in taking dictation had been reduced about 50 per cent of what it was before; that she is nervous, irritable and fidgety and sometimes bursts out crying; that she puts out about one-third the amount of work she did before she was injured. She frequently stops during her work to massage her hands and arms. She does not perform any of her duties in his office in a substantial and material way. She cannot take dictation for any length of time, especially when one reads from a book. She cannot transcribe her notes accurately. She cannot read them. She cannot file. She becomes nervous and papers become lost. She is nervous and agitated and makes many mistakes, and her efficiency has been impaired in his opinion as much as 50 or 60 per cent."

Plaintiff testified as follows:

"That she works an hour or two in the office and then gets nervous and has to take a walk; that she cannot hold her pencil as...