Burns v. Aetna Life Ins. Co.

• Decision Date: 03 January 1939
• Docket Number: No. 24715.,24715.
• Citation: 123 S.W.2d 185
• Parties: JOHN BURNS, RESPONDENT, v. AETNA LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

123 S.W.2d 185

JOHN BURNS, RESPONDENT, v. AETNA LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT.

No. 24715.

St. Louis Court of Appeals. Missouri.

Opinion filed January 3, 1939.

Appeal from the Circuit Court of the City of St. Louis. — Hon. Michael J. Scott, Judge.

AFFIRMED.

S.R. Redmond and Henry D. Espy for respondent.

(1) The case was properly submitted to the jury. Girvin v. Metropolitan Life Ins. Co., 84 S.W. (2d) 644. (a) The Illinois law is not properly before the court. Corbett v. Terminal R. Ass'n, 82 S.W. (2d) 102; Christy v. Wabash Ry. Co., 195 Mo. App. 232, 241, 191 S.W. ___. (b) Plaintiff made a strong case even under the Illinois law. Grand Lodge Locomotive Firemen v. Orrel, 206 Ill. 208; Spears v. Carter, 224 Mo. App. 726, 24 S.W. (2d) 717; Ransford v. National Protective Ins. Ass'n, 16 S.W. (2d) 663; 6 R.C.L. 837-838. (2) Plaintiff's instructions are in proper form. Gannaway v. Pitcairn, 109 S.W. (2d) 83; Krelitz v. Calcaterra, 33 S.W. (2d) 912. (a) Instruction No. 2 is proper and correct. Neagle v. City of Edina, 53 S.W. (2d) 1081. (b) Instruction No. 1 is proper and correct. Farmer v. Metropolitan Life Ins. Co., 85 S.W. (2d) 235; Moss v. Metropolitan Life Ins. Co., 84 S.W. (2d) 395.

Jones, Hocker, Gladney & Grand and Lon Hocker, Jr., for appellant.

(1) Where the master group policy was applied for and delivered in Illinois and the individual certificate was likewise delivered in Illinois, where the insured member resided, the contract or policy is governed and controlled by the Illinois law. Lukens v. International Life Ins. Co., 269 Mo. 574, 191 S.W. 418; Crohn v. United Commercial Travelers, 170 Mo. App. 273, 156 S.W. 472. (2) Under the Illinois authorities the requirement of the policy that the insured member be "unable to engage in any occupation or employment for wage or profit" means "total inability to perform any labor to an extent necessary to entitle the insured to receive earnings." Supreme Tent of Knights of Maccabees v. King, 79 Ill. App. 145; 4 Joyce on Insurance, sec. 3031; Bacon on Benevolent Soc. and Life Ins., 395A; U.S. Mutual Accident Ass'n v. Millard, 43 Ill. App. 148; Steffan v. Bankers Life Co., 267 Ill. App. 248; Bergholm v. Peoria Ins. Co., 284 U.S. 489; Grand Lodge Locomotive Firemen v. Orrell, 206 Ill. 208, 69 N.E. 68; Buffo v. Metropolitan Life Ins. Co., 277 Ill. App. 366; 2 Bacon on Life and Accident Ins., p. 1365; Sibley v. Travelers Ins. Co., 275 Ill. App. 323; Beck v. Zurich General Acc. & Lia. Co., 62 Fed. (2d) 965. (3) It is erroneous to submit to the jury issues of law. Henry v. Illinois Central R. Co. (Mo.), 282 S.W. 423; Albert v. Besel, 88 Mo. 150; Hickey v. Ryan, 15 Mo. 63; Coleman v. Roberts, 1 Mo. 97.

McCULLEN, J.

This suit was brought by respondent as plaintiff below against appellant as defendant to recover disability benefits under a group policy of life insurance which was issued by defendant to an organization known as Swift & Company Employes Benefit Association. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff against defendant in the sum of $2000, with interest added, making a total of $2117. After an unavailing motion for a new trial, defendant brings the case to this court by appeal.

Plaintiff's petition alleged that defendant issued to Swift & Company, a large industrial concern, its group policy insuring all the employees of said Swift & Company, being group policy No. 3380; that, in compliance with the terms of said group policy, there was issued to plaintiff an individual certificate No. 176113 in the sum of $2000. Said certificate was attached to the petition and made a part thereof as plaintiff's Exhibit A. Plaintiff's petition further alleged that, under the terms of the group policy and individual certificate, defendant promised to pay plaintiff $2000 in the event of plaintiff's total disability.

Plaintiff further alleged that, on February 21, 1936, while he was in the employ of Swift & Company and while said group policy was in full force and effect, plaintiff became wholly and permanently disabled and will remain so until he dies; that he is less than sixty years old; that demand was made by plaintiff upon defendant for benefits due under the policy, but defendant refused to pay. Plaintiff prayed judgment for $2000 with interest and penalties for vexatious refusal to pay.

Defendant's answer contained an admission of the issuance of the group policy and the individual certificate, coupled with a general denial. For further answer, defendant alleged that the group policy and certificate constituted contracts executed in the State of Illinois, and that they were governed by the laws of that State. Defendant further alleged that, under the laws of the State of Illinois, plaintiff was not totally and permanently disabled. Plaintiff's reply was a general denial.

The evidence discloses that plaintiff went to work for Swift & Company in 1931, and worked for that company until February 21, 1936. Shortly after he began work for Swift & Company, plaintiff became a member of the Swift & Company Employes Benefit Association. The group policy of insurance, under which plaintiff, as a member of Swift & Company Employes Benefit Association was insured, provides as follows:

"If any member before attaining the age of sixty years and while insured hereunder, becomes totally disabled and presumably will thereafter during life be unable to engage in any occupation or employment for wage or profit, or shall meet with the entire and irrecoverable loss of the sight of both eyes or the use of both hands or both feet or of one hand and one foot, such member shall be deemed to be totally and permanently disabled. Upon receipt at the Home Office of the Company, during the continuance of insurance on such member of satisfactory evidence of such disability, the Company will pay the amount of insurance in force upon such life at the time such disability commenced, in lieu of all other benefits provided for on such life under this policy, by that one of the following optional methods that shall be designated and requested."

The evidence shows that the group policy was delivered to Swift & Company Employes Benefit Association in Chicago, Illinois; and that the certificate issued under said group policy of insurance was delivered to plaintiff in East St. Louis, Illinois.

It further appears from the evidence that, while the group policy of insurance and certificate were in force and effect during the summer of 1934, plaintiff received an injury to his right wrist in Swift & Company's plant while he was lifting a frozen hog carcass from a conveyor chain to a table where it was to be butchered. In describing the manner in which he sustained the injury to his wrist, plaintiff testified:

"Whilst I was lifting one of those big hogs the roller — they bend the roller lots of times when they are killing them — they bend the roller, and the thing that pulls the roller around, it catches behind the roller, and by being bent it goes over and misses. And one of those big hogs come around with the roller bent, and I didn't notice it was bent — in fact, I didn't take time to look up — and I grabbed it and shot it up, and just as I stuck my arm under it the thing turned the roller loose and it flopped back and hit my wrist and fractured it."

For about nine months after sustaining said injury, plaintiff was treated by Dr. Gowan, who was employed by Swift & Company. During that period of treatment, which consisted of applying liniment and putting plaintiff's wrist in a splint, plaintiff was given light work to do, which he described as "pill around." During the month of May, 1935, plaintiff complained that he was wholly unable to use his right hand because of the injury to his wrist, and Dr. Gowan had plaintiff's hand X-rayed at St. Mary's Hospital in East St. Louis, Illinois. A day or so thereafter, upon his return to the plant, plaintiff was sent to Barnes Hospital in St. Louis where, on May 27, 1935, an operation was performed on his right hand by Dr. Glover H. Copher, who removed the right carpal semilunar bone. On July 20, 1935, plaintiff returned to work at the plant where he was given light work, such as oiling machinery and washing floors with a hose, and continued working at that kind of work until February 20, 1936. He was discharged from his employment on February 21, 1936, but no deduction was made from his weekly pay for the payment of his premium contribution on the group policy of insurance after February 14, 1936.

Under the heading "Individual Terminations," the group policy of insurance provides:

"The insurance of any member insured hereunder may at the option of the Association be terminated by it whenever said member for any reason whatsoever ceases to be in the employ of Swift & Co., and/or its subsidiaries or affiliated companies, or at any time thereafter. If employment of any member insured hereunder ceases, but membership in the Employees Benefit Association is continued thereafter, the insurance shall be continued until the member's name is removed or canceled from the Group Life Insurance records of the Employees Benefit Association. The insurance of any member insured hereunder shall automatically be terminated upon withdrawal from or termination of membership in Swift & Company Employees Benefit Association, or upon failure of the member to make the required premium contribution, or upon discontinuance of the Group Policy by Swift & Company Employees Benefit Association."

On March 19, 1936, Dr. Robert M. Scott, acting on behalf of plaintiff, submitted proofs of loss in support of plaintiff's claim for disability, which was denied by defendant.

Defendant contends that the trial court erred in failing to give and read to the jury its instruction in the nature of a demurrer to the evidence offered at the close of the testimony; and asserts that there was no evidence to show that plaintif...