Burneson v. Massachusetts Bonding & Ins. Co.

• Decision Date: 21 October 1947
• Docket Number: No. 27201.,27201.
• Citation: 205 S.W.2d 239
• Parties: BURNESON v. MASSACHUSETTS BONDING & INS. CO.
• Court: Missouri Court of Appeals

205 S.W.2d 239

BURNESON v. MASSACHUSETTS BONDING & INS. CO.

No. 27201.

St. Louis Court of Appeals. Missouri.

October 21, 1947.

Appeal from St. Louis Circuit Court; W. L. Mason, Judge.

"Not to be reported in State Reports."

Action on accident policy by Carl E. Burneson against Massachusetts Bonding & Insurance Company. From the judgment, the defendant appeals.

Affirmed.

Leahy & Leahy and Fred J. L. Schuler, all of St. Louis, for appellant.

John Grossman, of St. Louis, for respondent.

WOLFE, Commissioner.

This is an action on an accident insurance policy, and it is brought in two counts. The first count is for an amount alleged to be due for a period of total disability, and the second count is for an additional amount for a following period of partial disability. There was a verdict and judgment on both counts in favor of the plaintiff with penalties and attorney's fees for vexatious refusal to pay on count one.

Burneson, the plaintiff, was a carpenter and was employed as such by a construction company on August 29, 1944. At that time he was engaged in nailing up a ceiling which work required him to stand upon a scaffold holding the sheeting with one hand while driving the nail with the other. The board on which he was standing broke while he thus had both hands above his head, and he fell straight downward striking, with his full weight upon his left leg, a 2 × 4 that was on the floor below the scaffold. He was unable to move and a passer-by summoned aid for him. He was taken to the Missouri Baptist Hospital where he was found to have a comminuted fracture of the distal end of the tibia of the left leg with a larger fracture over its posterior portion extending upward to the upper third. The articulating surface was also involved. The fibula was fractured and the foot dislocated backward. The fracture was reduced and held in place by pins through the bone and he was confined to the hospital for nine weeks. At the end of his hospitalization he went home on crutches, which he was obliged to use until the latter part of February the following year when he discarded them for a cane. He used the cane for about a month and a half but remained home until September 2, 1945, receiving treatment for the leg from time to time up to the date of the trial in the circuit court. After discarding his cane he did some carpentering about his home and was observed so doing by defendant's adjuster. On September 2 he returned to work for his former employer as a general foreman and at a higher wage than he had earned prior to the accident, but both he and his doctor testified that he was not able to perform all of the duties incident to the work of carpentry.

At the time of the accident plaintiff carried with defendant, Massachusetts Bonding and Insurance Company, a policy of accident insurance, which, in addition to certain hospitalization benefits, provided for the payment of weekly indemnity in the sum of $25 a week for 52 weeks in case of total disability, and further provided for the payment of $10 a week for a period not exceeding 26 consecutive weeks for partial disability.

In January of 1945, the insurance company made a payment to Burneson of $50 for the fracture of the leg, nine weeks of hospitalization at $12.50 a week, and 21 weeks of total disability at $25 a week, all of which items aggregated $687.50. After plaintiff returned to work he inquired of defendant company about the balance owing him for total disability and made claim upon defendant for partial disability payments.

It is admitted that there was owing plaintiff at that time $789.28, representing the balance of total disability payments due him under the terms of the policy, and defendant tendered to plaintiff a check for that amount. The check bore the statement that it was in full and complete settlement of all claims under the policy for injury sustained or illness contracted prior to the date thereof. Plaintiff declined the check because of the release contained in it as he was demanding an additional sum for partial disability, and defendant refused to pay the total disability due unless released of all liability under the policy for accidents to the date of the check. From this impasse at which the parties had arrived this suit resulted, with plaintiff requesting in count one of the petition a judgment for $789.28 due as total disability payments with interest and attorney's fees, plus ten per cent for vexatious refusal to pay, and in count two asking for $260 for partial disability with interest, attorney's fees, and ten per cent for vexatious refusal to pay. The trial resulted in a verdict and judgment on count one for the full amount sued for with interest, $250 attorney's fees, and $78.92 for vexatious refusal to pay. On count two the verdict and judgment was for $260 with interest but no attorney's fees or penalties were allowed.

Upon the trial of the case, during the cross-examination of the plaintiff, counsel for defendant stated, outside of the hearing of the jury: "I propose to ask this witness if he received any money in the way of workmen's compensation and Mr. Grossman has indicated that he would make exceptions to such a question at this time and move for a mistrial." Mr. Grossman, attorney for plaintiff, then objected on the grounds that the proposed question was immaterial and irrelevant to the issues of the case. The court sustained the objection, and defendant claims that it erred in so doing. Why the point is urged here is not clear, since in subsequent testimony defendant's claim agent testified without objection that the plaintiff was paid workmen's compensation up to September 1, 1945. The workmen's compensation plaintiff was paid came, of course, under the compensation act, which defines total disability, Mo.R.S.1939, Section 3695(e), Mo. R.S.A., as follows: "The term `total disability' as used in this chapter shall mean inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident"; while the policy defines total disability as that which wholly and continuously disables the insured and prevents him from performing any and every duty pertaining to his occupation. By reason of these two conflicting definitions of total disability, one applicable to the construction of the statute and the other applicable to the contract sued upon, it is difficult to see wherein the mere question of how much money was paid as workmen's compensation would be in any way material, and the court did not err in excluding it.

It is also urged that the court erred in excluding certain testimony of the building contractor, who was called by the defendant as an expert witness. His testimony was offered on the issue of partial disability, which is defined in the policy as that disability preventing the insured from performing one or...