Christy v. Great Northern Life Ins. Co.
| Decision Date | 05 June 1944 |
| Citation | 181 S.W.2d 663,238 Mo.App. 525 |
| Parties | Paul G. Christy, Respondent, v. Great Northern Life Insurance Company, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court; Hon. Emory H. Wright, Judge.
Affirmed.
P. H Jackson and Walter A. Raymond for appellant.
(1) The court erred in refusing to give defendant's requested Instruction "A" in the nature of a demurrer to the evidence, as plaintiff's evidence was insufficient to make a submissible case on the cause of plaintiff's previous disability, or the continuance of such previous disability, which are necessary elements of the doctrine of res judicata which is the basis of plaintiff's action. Koontz v. Whitaker, 111 S.W.2d 197, 201; Jungeblut v. Maris, 234 Mo.App. 288, 130 S.W.2d 681 683; 34 C. J. 1072, sec. 1516; 30 Am. Jur., p. 997, sec. 283; Stoner v. New York Life Ins. Co., 232 Mo.App. 1048 114 S.W.2d 167, 170; United States Fidelity & G. Co. v. McCarthy, 33 F.2d 7, 70 A. L. R. 1447 (U.S. Cir. Ct. App., 8th Cir.), 1454. (2) The court erred in giving plaintiff's Instruction No. 1 for the reason that it is not supported by the evidence, assumes facts not in evidence and directs a verdict for plaintiff on an insufficient hypothesis of facts. Laughlin v. Boatmen's Nat. Bank of St. Louis, 163 S.W.2d 761, 764; Missouri Steel & Wire Co. v. Edmonds & Allgier, 234 Mo.App. 1028, 136 S.W.2d 118, 124; Walton v. A. B. C. Fireproof Warehouse Co., 233 Mo.App. 693, 124 S.W.2d 584, 590; State ex rel. Fourcade v. Shain et al., 342 Mo. 1190, 119 S.W. (2) 788; Evans v. Atchison, T. & S. F. Ry., 345 Mo. 147, 131 S.W.2d 604, 610; Gundelach v. Compagnie Generale Transatlantique (Mo.), 41 S.W.2d 1, 2. (3) The court erred in giving plaintiff's Instruction No. 2 submitting the issue of penalties for vexation and delay when there was no substantial evidence in the case warranting the submission of such issue. Kessler, Accidental Injuries, "Diagnosis of Traumatic Neuroses," p. 540; Paetz v. London Guarantee & Accident Co., 228 Mo.App. 564, 71 S.W.2d 826, 829; Volz v. Travelers Ins. Co., 161 S.W. 985, 994; Aufrichtig v. Columbian Nat. Life Ins. Co., 298 Mo. 1, 249 S.W. 912, 916; St. Clair v. Washington Fidelity Nat. Ins. Co. (Mo. App.), 89 S.W.2d 85, 88.
R. C. Southall for respondent.
(1) The court did not err in refusing to give defendant's requested Instruction "A" in the nature of a demurrer to the evidence. Christy v. Great Northern Life Ins. Co. (Mo. App.), 162 S.W.2d 301; Crnic v. Croatian Fraternal Union (Mo. App.), 66 S.W.2d 163; Boillot v. Income Guaranty Co. (Mo. App.), 102 S.W.2d 138; Case v. Sipres, 280 Mo. 110, 217 S.W. 309; State ex rel. v. Patton, 271 Mo. 554, 197 S.W. 353. (2) The court did not err in giving plaintiff's Instruction 1 since it stated the law of the case properly. Christy v. Great Northern Life Ins. Co. (Mo. App.), 162 S.W.2d 301; Keyes v. C., B. & Q. R. R., 326 Mo. 236, 31 S.W.2d 50; Bowers v. K. C. P. S. Co., 328 Mo. 77, 41 S.W.2d 810; Hill v. St. L. P. S. Co. (Mo. App.), 64 S.W.2d 633; Rowland v. Boston Ins. Co. (Mo. App.), 55 S.W.2d 1011; Garfield v. S. O. D. M. S. (Mo. App.), 112 S.W.2d 934; Beile v. Travelers Protective Assn., 155 Mo.App. 629, 135 S.W. 497. (3) The court did not err in giving plaintiff's Instruction 2 submitted on the issue of vexatious refusal to pay. Grandgenett v. Natl. Protective Assn. (Mo. App.), 73 S.W.2d 341; Bonzon v. Met. Life Ins. Co. (Mo. App.), 143 S.W.2d 340; Christy v. Great Northern Life Ins. Co. (Mo. App.), 162 S.W.2d 301. (4) The court should inflict a penalty of ten per cent for vexatious appeal in this case. Sec. 1230, R. S. Mo. 1939; Christy v. Great Northern Life Ins. Co. (Mo. App.), 162 S.W.2d 301; Boillot v. Income Guaranty Co. (Mo. App.), 120 S.W.2d 74; Bonzon v. Met. Life Ins. Co. (Mo. App.), 143 S.W.2d 340; Boillot v. Income Guaranty Co. (Mo. App.), 124 S.W.2d 608.
This is an action, arising before a justice, upon a total disability provision of an accident insurance policy. There was a verdict and judgment in the circuit court in the sum of $ 400, together with interest thereon in the sum of $ 36, and attorneys' fees in the sum of $ 250, based upon a vexatious refusal to pay, aggregating a total amount of $ 686. Defendant has appealed.
The facts show that on January 22, 1940, plaintiff, while walking on an icy sidewalk in Kansas City, slipped and fell, striking his back and left knee. Defendant paid plaintiff installments of $ 100 per month from the date of his injury to August 21, 1940, when defendant refused to make any further payment. Plaintiff filed three separate suits covering indemnity from August 22, 1940 to February 22, 1941. These cases were prosecuted by plaintiff to judgments in the circuit court. Defendant appealed to this court, where the judgments were affirmed. [See Christy v. Great Northern Life Ins. Co., 162 S.W.2d 301.] Thereafter, this suit was filed to recover indemnity from February 22, 1941 to June 22, 1941.
The facts further show that, when plaintiff fell, he was taken to a hospital where X-rays were taken, which revealed no bone fractures. His attending physician, Dr. Brams, testified that there was a diagnosis of "trauma to the knee, possibly cartileginous injury"; that a cast was applied to the left leg from the mid-thigh down, including the foot; that the cast was removed in about eight weeks and several weeks thereafter, on examination of plaintiff, there was found complete anesthesia of his left side, which included the face, arm, and the abdomen and the leg. Dr. Casebolt, who was called to examine plaintiff for the purpose of testifying, stated that he discovered the anesthesia on October 14, 1940; that he saw plaintiff on October 14, 1940, and again about a week later. He did not see plaintiff again. Dr. Casebolt further testified that plaintiff's condition of anesthesia was due to a nerve injury; that plaintiff at the time that he saw him was also suffering from muscle spasms due to an injury to the sacroiliac region.
Dr. Brams testified that the X-rays also showed that plaintiff was suffering from a condition of chronic arthritis, indicating that he has suffered from arthritis for sometime before his fall. The doctor testified that he had attended plaintiff as his physician from January 23, 1940, to and including February 21, 1941, and had seen him at least once a week during that time; that plaintiff's condition had not changed and the condition of aesthesia still exists; that it was possible, but improbable, that this condition was feigned; that, in his opinion, plaintiff had been continuously disabled from the date of the accident to the date of the trial; that he diagnosed plaintiff's condition at the time of the trial as traumatic neurosis; that this is a condition where the patient has in his own mind a very real disease or pain for which there is no pathology or organic finding; that plaintiff had very foul teeth, which could be a contributing, or the sole, cause of the arthritis and the pain in his back, but could not be the cause of the neurosis; nor could the arthritis be the cause of plaintiff's anesthesia; that the arthritis may have been aggravated or activated by the trauma; that, in his opinion, if plaintiff was a hale and hearty man prior to his fall and was not disabled by arthritis, "the fall could account for his trouble (but) the aggravation of his old trouble (arthritis) plus the new symptoms they presented"; that, "in my opinion, the fall started this whole chain of disease."
There was other testimony that plaintiff was a strong able-bodied man prior to his fall and experiencing no sensation indicating that he was afflicted with arthritis. Since the fall he has become totally disabled, walks with crutches and suffers intense pain.
Plaintiff introduced the petitions and judgments in the three cases reviewed in this court in Christy v. Great Northern Life Ins. Co., 162 S.W.2d 301. The petitions in those cases contained the same allegations as the petition in the case at bar, alleging that plaintiff, by reason of the fall, sustained accidental injuries which have continuously disabled him. None of those petitions or judgments in the four cases states, specifically, the injuries received. Plaintiff tried the present case on the theory that the judgments in the former cases are res adjudicata of the issues of this case, save and except as to the issue whether the injuries he received continued over the period of time sued for herein. Defendant introduced no testimony.
Defendant insists that its instruction in the nature of a demurrer to the evidence should have been given, and that plaintiff's Instruction No. 1 is erroneous.
Plaintiff's Instruction No. 1 told the jury, in effect, that plaintiff received accidental injuries by reason of his fall, within the meaning of the terms of the policy, which wholly disabled him from doing any and every kind of duty pertaining to any occupation or business during the time up to and including February 21, 1941, and "you are therefore instructed that if you find and believe from the evidence that the disability which existed prior to February 22, 1941 continued to exist and continued to disable the plaintiff from performing any and every kind of duty pertaining to any occupation or business during the period of time in this suit, extending from February 22, 1941, to June 22, 1941, and that defendant has not paid the indemnity for that period, if you find plaintiff was entitled to such...
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