Clanton v. Travelers' Protective Association

• Citation: 74 S.W. 510,101 Mo.App. 312
• Parties: GEORGE L. CLANTON, Respondent, v. TRAVELERS' PROTECTIVE ASSOCIATION, Appellant
• Decision Date: 31 March 1903
• Court: Court of Appeal of Missouri (US)

74 S.W. 510

101 Mo.App. 312

GEORGE L. CLANTON, Respondent, v. TRAVELERS' PROTECTIVE ASSOCIATION, Appellant

Court of Appeals of Missouri, St. Louis

March 31, 1903

[Copyrighted Material Omitted]

Appeal from Audrain Circuit Court.--Hon. E. M. Hughes, Judge.

REVERSED.

STATEMENT.

Omitting caption the petition is as follows:

"Plaintiff states that the defendant is a corporation organized under the laws of the State of Missouri and had been such corporation since the ninth day of June, 1890.

"That said corporation has power to provide an indemnity fund and aid and assist its members who may be maimed, crippled or disabled by accidents; and it has a large membership holding policies providing for indemnity against accidents.

"And this said defendant did issue to this said plaintiff a certificate or policy providing such indemnity on the first day of January, 1896, which certificate is herewith filed.

"That said corporation has a charter and by-laws, and section 3, of article 9, of the constitution of said association provides as follows: 'Whenever a member of this association, in good standing, shall, through external and accidental means receive bodily injuries, which shall, independently of all other causes, immediately and wholly disable him from transacting any and every kind of business pertaining to his occupation, as shown by the records of this association, he shall be paid for the loss of time occasioned thereby the sum of $ 25 per week, not exceeding fifty-two consecutive weeks. But such sum shall not be paid in addition to benefits received under section 2 of this article.'

"That on the -- day of March, 1900, while this said plaintiff was a member of said association, he did suffer an accident to his left ankle and leg, received through external and accidental means, which did, independent of all other causes, wholly and immediately, disable him from transacting any and every kind of business pertaining to his occupation, to-wit, that of a traveling salesman.

"That the said plaintiff did, immediately after receiving said accident, furnish to the defendant an affidavit by himself together with an affidavit of a local physician residing at Mexico, Missouri, where said accident took place. And did also furnish defendant all proofs required by it of said accident, and the said defendant did, on the -- day of June pay to the said plaintiff the sum of $ 164.28 for loss of six weeks and four days time.

"But at the time of said payment this said plaintiff had not recovered from the effects of said accident and defendant was so informed.

"And shortly before said payment, to-wit, on the -- day of July, 1900, this plaintiff, before having recovered from the effects of said accident and while his said ankle and leg were still sore from the effect of the same, did lightly strike the said sore on his said leg and ankle so as to inflame the same and cause a relapse.

"That plaintiff did notify said defendant again of his relapse and of the fact that he had not fully recovered from the accident as above set forth.

"That defendant, on the eleventh day of June, 1900, and before the said defendant had paid him the amount aforesaid, did receive from him his annual dues, which continued him as a member of said association and entitled him to all of the benefits thereof until the first day of January, 1901.

"That said plaintiff continued unable to perform his usual avocation, and was totally disabled from performing his usual avocations and duties until the first day of January, 1901.

"That said defendant has failed and refused to pay to said plaintiff the indemnity provided for in the certificate, herewith filed, and in the constitution and by-laws.

"That defendant is indebted to plaintiff for indemnity at the rate of $ 25 per week since the twenty-eighth day of April, 1900, amounting in all to the sum of $ 900.

"Wherefore plaintiff prays judgment against said defendant for said sum of $ 900 with interest thereon since the first day of January, 1901, and for costs."

The answer is a general denial and contains the following affirmative clauses:

"Now comes said defendant, leave of court first being had and obtained, and for its amended answer to plaintiff's petition, denies each and every allegation therein contained except as hereinafter expressly admitted.

"Defendant further admits that on the -- day of June, 1900, it paid to said plaintiff the sum of $ 164.28, but alleges that said payment was accepted by said plaintiff in full settlement of all liability upon the part of the defendant for injuries received by him growing out of the alleged accident of March 13, 1900, and denies that said sum of $ 164.28 was received by plaintiff only as a part payment for said alleged injuries.

"Now having fully answered, defendant prays to be dismissed with costs."

The reply contains the following clause:

"Plaintiff further says that it is not true that he accepted said $ 164.28 so paid to him in full settlement of his claim on account of said injuries, and further says that at the time said amount was paid defendant well knew that the same was not paid in full satisfaction of said claim, and any receipt given to said defendant on account of said damage was delivered to defendant when both parties well knew and understood that said receipt was given for a part payment only on account of said damage, and if said receipt so given contains any statement that said payment was in full settlement of said claim for damage it was not so intended by either party hereto and was wrongfully obtained from plaintiff."

Plaintiff offered evidence tending to prove the allegations of his petition, and that he was totally disabled by reason of the injuries alleged to have been received and that he was unable to resume his occupation from April 28, 1900, to January 1, 1901.

The following sections from the constitution and by-laws of the association were read in evidence:

"Sec. 2. Five thousand dollars shall be paid to the beneficiaries named in the certificate of any deceased member, in case of death by accident; $ 2,500 in case of the loss of both arms or both legs; $ 1,500 in case of loss of one hand and one foot; $ 1,000 in case of loss of one arm or one leg; $ 2,500 in case of loss of one arm and one leg; $ 1,000 in case of loss of one hand or one foot; $ 1,000 in case of loss of one eye; $ 5,000 for loss of both eyes; provided such death or loss shall occur within three calendar months after the accident which caused it, and such accident be within the limitations and conditions of the benefit certificate.

"Any member of this association who may have joined prior to July 1, 1894, can accept the above benefits when he surrenders the certificate issued prior to above date, and every member shall accept such benefit not later than January 1, 1895.

"Sec. 3. Whenever a member of this association, in good standing, shall, through external and accidental means, receive bodily injuries, which shall, independently of all other causes, immediately and wholly disable him from transacting any and every kind of business pertaining to his occupation, as shown by the records of this association, he shall be paid for the loss of time occasioned thereby, the sum of $ 25 per week, not exceeding fifty-two consecutive weeks. But such sum shall not be paid in addition to benefits received under section 2 of this article.

"Sec. 6. All claims for benefits or indemnity under the benefit certificate of a member must be accompanied by the affidavit of the claimant, together with the affidavit and certificate of one or more local physicians where the death or injury by accident happened, setting forth fully the cause and nature of the death or injury to the member, and also a certificate covering the same facts by two members of the same state division, when possible, or by a similar certificate of two reputable citizens of the vicinity where the death or injury occurred. Such certificates must be furnished within sixty days after the death resulting from such accident, or recovering from such injury, and there shall be no liabilities upon the part of this association unless this is done.

"Sec. 7. Any member meeting with an accident must notify by writing the state secretary of the division of which he is a member, or the national secretary, within ten days of such accident, giving full particulars of same, and name of attending physician. In case of failure to so notify, except because of unconsciousness, or physical inability, the member shall forfeit all right to insurance benefits."

On May 7, 1900, plaintiff made out and swore to his proofs of loss and forwarded the same to the defendant association. In these proofs the following questions and answers are found:

"Q. How long were you confined to your bed? A. Not at all.

"Q. How long were you confined to the house? A. I was not outside of the hotel for two weeks.

"Q. How long were you completely disabled from attending to the duties of your occupation? A. From March 13th to April 28.

"Q. When did you first begin after said injury to attend to any part of your business or occupation? A. April 28th.

"Q. For what length of time do you claim indemnity for total disability? A. I claim six weeks and four days indemnity for total disability."

On June 29, 1900, defendant wrote and mailed to plaintiff the following letter:

"June 29, 1900.

"Mr. Geo. L. Clanton,

Ringo Hotel, Mexico, Mo.

"Dear Sir: Enclosed find check for $ 164.28 in full settlement of your claim for indemnity against this association. Kindly acknowledge receipt. You will note that it is necessary to sign and deposit receipt with check, as our bank will not pay these indemnity checks unless accompanied by the...