Caine v. Physicians' Indemnity Co. of America

• Decision Date: 02 February 1932
• Docket Number: No. 21695.,21695.
• Parties: CAINE v. PHYSICIANS' INDEMNITY CO. OF AMERICA.
• Court: Missouri Court of Appeals

45 S.W.2d 904

CAINE v. PHYSICIANS' INDEMNITY CO. OF AMERICA.

No. 21695.

St. Louis Court of Appeals. Missouri.

February 2, 1932.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

"Not to be officially published."

Action by John E. Caine against the Physicians' Indemnity Company of America (Joseph B. Thompson, receiver). From a judgment for plaintiff, defendant appeals.

Affirmed.

Jesse W. Barrett and Ellison A. Poulton, both of St. Louis, for appellant.

Martin Farrow and Charles A. Lich, both of St. Louis, for respondent.

BENNICK, C.

This is an action upon a policy of health and accident insurance, which was issued on August 7, 1925, by defendant, Physicians' Indemnity Company of America, to plaintiff, John E. Caine.

The policy provided that, in consideration of the statements and agreements contained in the application for membership, which was made a material part of the contract, and the payment of the membership fee of $2, and the further payment of assessments which the board of directors should levy to keep the certificate of membership in force, the company accepted plaintiff as a member; his occupation being that of hodcarrier, with duties as described in the application.

Then followed the agreement of the company to pay certain sickness and accident benefits, subject to such conditions, limitations, and exceptions as were thereinafter set out; the portions of the policy relating thereto, and material to the issues decisive of the case, being as follows:

"Accident Benefits.

"Paragraph (1) For loss of time on account of bodily injuries sustained by the member, while in good standing, by external, violent, and accidental means, and which shall, wholly disable the member from performing all duties pertaining to his occupation, for the period of such disability, not exceeding fifty-two consecutive weeks, at the rate of One Hundred Dollars ($100.00) per month, for the number of consecutive days so disabled."

"Paragraph (5) Or, if such injuries, sustained under the conditions described in Paragraphs one and two hereof, shall, independently of all other causes, necessitate, within ninety days from the date of the accident, the amputation of both hands at or above the wrist, or result in the total and irrecoverable loss of the sight of both eyes, the member shall be paid the sum of One Thousand Dollars ($1,000.00).

"Paragraph (8) The Company shall not be liable for weekly indemnity nor for permanent disability indemnity on account of an accidental injury by reason of which claim is made under Paragraphs three, four, five, six and seven of this certificate, nor shall the liability in any case extend to more than one loss provided in this certificate on account of any one accident to the member."

"Permanent Disability Benefits.

"Paragraph (1) If the member becomes totally and permanently disabled so as to be entitled to indemnities specified under Paragraph one of either Sickness benefits or Accident benefits, and should such disability continue beyond the period of fifty-two consecutive weeks, the Company will pay to the member the sum of Twenty-Five Dollars ($25.00) per month as long as such total disability exists."

Of the general agreements contained in the policy, the only provisions which have any bearing upon the issues involved on this appeal are the following:

"General Agreements.

"Paragraph (1) The applicant must be in sound health when this policy is delivered, and no liability is assumed by the company prior to delivery. The falsity of any statement in the application for this certificate materially affecting either the acceptance of the risk, or the hazard hereunder, or made with intent to deceive, shall bar all right to recovery under this certificate.

"Paragraph (2) Except within the contestable period of two years, the Company will have no right to cancel the Insurance herein granted except for fraud on the part of a member or other person through his procurement or arrangement, in order to obtain any benefits by reason of his membership, or for non-payment of assessments."

"Paragraph (5) This certificate, with the original application for insurance and such other papers as may be attached hereto or endorsed hereon, shall constitute the entire contract of insurance.

"Paragraph (6) No statement made by the member, not incorporated in or endorsed on this certificate, shall void the same or be used in evidence, and no provisions of the charter, constitution or by-laws shall be used in defense of any claims under this certificate unless such provision is incorporated in full herein."

Plaintiff, at the solicitation of an agent for defendant company, applied for the policy about a week prior to the date of its issuance, and, when he was asked what his occupation was, he handed the agent his union card, which showed his occupation to be "hodcarrier, concreting and labor work and general building." Plaintiff testified that he worked as a hodcarrier except when he could obtain no such employment, that at such times he performed common labor, and that the general character of his work did not change from 1925, when he obtained the policy, to 1926, when his injury was received.

The assessments called for by the policy consisted of monthly dues of $3, and plaintiff was furnished a card, on which it seems that the company's receipt for payment was supposed to appear. However, there were occasions when the receipt was given him on a separate slip, but in each instance it was signed by the agent who received the money. Plaintiff testified that upon only one occasion did he go to the company's office to pay his assessment, that all other payments were made when the agent came to collect them, and that, if he himself happened to be away from home when the agent called, his wife would make the payments for him. It was further shown that, though the 7th of each month was the due date for the payment of assessments, or at least it so appeared from defendant's evidence, payments at a later date were always accepted and credited by whoever chanced to be the company's agent at the time.

That plaintiff's insurance was paid up until December 7, 1926, is not disputed, but the assessment due on that date was allowed to go unpaid until December 23d. Meanwhile, on December 9th, plaintiff sustained the injury for which he seeks in this action to recover the benefits provided by the policy. He was engaged in cleaning a concrete floor in a building which was being erected at Garrison and Laclede avenues, in the city of St. Louis, when in some unexplained manner a nail was caused to fly up and pierce his right eyeball. Previously plaintiff had had but slight vision in his left eye, and, following the injury of December 9th, permanent and total blindness in both eyes resulted.

Plaintiff's evidence was that, on the date of his accident, one Clifton, the superintendent of agents for defendant, called at his home to see him, and found him confined to his bed with the injured eye, that he told Clifton that his monthly assessment had fallen due on the 7th, and that he desired to pay it, and that he tendered Clifton a $10 bill, but the latter, not having the correct change, said: "That's all right, Mr. Caine; don't worry; I will send the agent around." On December 23d the agent did call at plaintiff's home, and received from the nurse who was in attendance the assessment of $3, for which he handed her in return the company's receipt in the usual form, showing payment from December 7, 1926, to January 7, 1927. This transaction with the agent also occurred in the room where plaintiff was bedfast, with a bandage over his eyes; and it appears that it was necessary for the matter of payment to be handled by the nurse, in view of the fact that plaintiff's wife had died about a month previously.

A day or so after plaintiff's injury was received, he turned in a preliminary claim, and on December 23d he submitted his own and the attending physicians' statements on forms prepared and furnished by the company.

For the defendant, Clifton, its superintendent of agents, denied that he called upon plaintiff on December 9th, the day of his accident, as plaintiff and the nurse had both testified, though he admitted that the December assessment was paid on the 23d of the month, and that the claim sheets reached his desk on the morning of December 24th, from which he insisted that he received his first notice of the injury.

Hedden, the agent, admitted receiving the payment from plaintiff's nurse on December 23d, but he denied that he knew at the time that plaintiff had been injured, or that he saw plaintiff on that occasion, or that he had any conversation with the nurse in regard to plaintiff's injury. However, the testimony of the nurse was that the agent conversed with plaintiff on that occasion and told him that he was sorry to learn that he had been hurt.

Other evidence for the defendant was that the occupation of hodcarrier was classified as E, and considered nonhazardous, while that of common laborer was classified as X, and was regarded as hazardous. While the record itself does not so show, it seems that such classifications appeared in a Conference Manual which was published by the company, but which was not introduced in evidence.

Plaintiff's petition alleged the issuance and delivery of the policy, the sustention of the injury while the policy was in full force and effect, and defendant's...