Coburn v. Metropolitan Life Ins. Co.

• Decision Date: 03 March 1936
• Citation: Coburn v. Metropolitan Life Ins. Co., 230 Mo.App. 1140, 91 S.W.2d 157 (Mo. App. 1936)
• Parties: ROBERT B. COBURN, RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, APPELLANT
• Court: Missouri Court of Appeals

91 S.W.2d 157

230 Mo.App. 1140

ROBERT B. COBURN, RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, APPELLANT

Court of Appeals of Missouri, Springfield

March 3, 1936

Appeal from the Circuit Court of Dunklin County.--Hon. J. V Billings, Judge.

REVERSED.

Judgment reversed.

Oliver & Oliver and Leroy A. Lincoln for appellant.

It was essential that plaintiff introduce in evidence the basis of his alleged cause of action, to-wit, the policy and certificates sued upon. Failure so to do was fatal. One certificate was described as a life insurance certificate the other as a health and accident certificate. Neither was introduced, nor any copies thereof, though one was identified. Woodmen of Union v. Anderson, 54 S.W.2d 406; Charles F. Adams v. Metropolitan Life Ins. Co., 74 S.W.2d 899. Where the insured actually worked until the termination of the insurance, if any, and thereafter, he cannot recover as totally and permanently disabled on the theory that the work endangered his health. New York Life Ins. Co. v. Torrance (Sup. Ct. Ala. 1932), 141 So. 547; Bowen v. Metropolitan, 67 S.W.2d 164. The plaintiff was guilty of laches. It was four years, seven months and three days after he claims to have become totally and permanently disabled before he made an attempt to make proof of such disability--from February 8, 1929, to September 11 1933. That is too long to wait to make a claim, so long as to be unreasonable as to make it the duty of the court to say so. Metropolitan v. Cleo Walton, 83 S.W.2d 274, l. c. 278; Adams v. Metropolitan Life Ins. Co., 74 S.W.2d 899.

John A. McAnally, W. L. Proffer and Bradley & Noble for respondent.

The best evidence rule means the best evidence available to the party producing it. Bosse v. Weik, 144 Mo.App. 468, 129 S.W. 417; Best v. Equitable Life Assurance Society (Mo. App.), 299 S.W. 118. Proofs of loss or disability under an insurance contract are not required to be in any particular form, nor are such proofs required to be the best proof available. All that is required is to give the insurer essential facts upon which its liability depends, and such proofs as are credible. Jacoby v. New York Life Ins. Co. (Mo. App.), 77 S.W.2d 840. Plaintiff was not in a position to know, off the reel, that the injury he received would permanently disable him and he had the right to delay giving notice until certain about the result of his injury, and that the injury he received then totally disabled him. 1 C. J. 474, 475, secs. 185, 186; Young v. Ry. Mail Assn., 126 Mo.App. 325, 103 S.W. 557; Wendell v. Ozark Orchard Co., 200 S.W. 747. Laches is implied waiver and waiver presumes knowledge of the subject waived. Also, laches is in the nature of estoppel and will not lie unless the delay works to the disadvantage of another. 21 C. J. 210, 211, sec. 211; Wendell v. Ozark Orchard Co., supra; Butler v. Lawson, 72 Mo. 227, 249. Mere delay short of the statute of limitations, seldom bars one from recovery. Wendell v. Ozark Orchard Co., supra; Butler v. Lawson, supra; Dye v. Bowling, 82 Mo.App. 587; Glass v. Templeton, 184 Mo.App. 532, 170 S.W. 665; 6 Cyc. 301.

SMITH, J. Allen, P. J., and Bailey, J., concur.

OPINION

SMITH, J.

--This is an action on an insurance policy, insuring plaintiff against total and permanent disability. Plaintiff contends that he was, at the time of his injury, in the employ of the Chevrolet Motor Company at Flint, Michigan. His home was at Hollywood, in Dunklin County, Missouri. He went to Flint in March, 1927, to work for the motor company, and began work for the company in March, 1927, and at that time, made application for insurance and a certificate of insurance was issued to him. Plaintiff quit work and this first certificate was cancelled, but he went to work again for the motor company in August, 1928, and continued till May 30, 1929, and at the time he went back to work in August, 1928, he again made application for and received a certificate for $ 1,000 of insurance. Then later, September 1, 1928, he made application for another $ 1,000 insurance certificate which was issued to him. General Motors Corporation carried with the Metropolitan Life Insurance Company Group Policy No. 3200-G, covering its employees and the employees of its subsidiaries which subsidiaries included the Chevrolet Motor Company. An employee of the Chevrolet Motor Company was insured under the Group policy by issuing to the employee what is called a certificate and the defendant insurance company furnished these certificates and the Chevrolet Motor Company delivered them to the employees taking insurance. Plaintiff was paid twice a month by the Chevrolet Motor Company and the premiums for the insurance, $ 1.50 per month, were deducted from the first pay check of the month, and the motor company paid the premium to the insurance company.

Group policy No. 3200-G under which plaintiff was insured provided that: "(c) Total and Permanent Disability Benefits.--Upon receipt by the Company of due notice and proof--in writing--that any Employee, while insured hereunder and prior to his sixtieth birthday, has become totally and permanently disabled, as a result of bodily injury or disease, so as to be prevented thereby from engaging in any occupation and performing any work for wage or profit, the Company will discontinue the Life Insurance in force on the life of said Employee and three months after receipt of such proof, will commence to pay, subject to the terms hereof, in lieu of the payment of Life Insurance at his death, monthly instalments as defined below to the said Employee or to a person designated by him for the purpose; provided that if such disability is due to, or is accompanied by, mental incapacity, the instalments may be paid to the Beneficiary of record of the said Employee, and the Company will continue such payments for the period provided below, should said Employee continue totally and permanently disabled."

The instalment payments provided for were $ 52.50 per month on a $ 2,000 certificate.

Plaintiff contends that when he went to work for the Chevrolet Motor Company he was in sound health and was also in sound health when he went back to work in August, 1928. Plaintiff contends that he received an injury while working for the Chevrolet Motor Company on the night of February 8, 1929, which resulted in his total and permanent disability within the meaning of the policy and while the policy was in force. As to the cause and result of the injury, plaintiff testified: "I got hurt on the night of February 8, 1929. I was running a high-speed milling machine where they were smoothing off heads and I had to climb up on a high platform to unloosen a nut and when I turned the nut it came loose right quick and I fell on the floor and there was an old piece of line shaft on the floor and I fell on that. Q. Was that a metal piece? A. Yes, sir. . . . The line shaft was made out of metal or steel and I fell on it. I was six and one-half feet from the floor. It struck me right under the left shoulder. It was something like two o'clock in the morning. I never worked any more that night. Something like thirty days later I went back and tried to work and worked about fifteen minutes. I tried three different times and found that I couldn't work and told them I would have to quit. I couldn't handle a machine I was so sore in my side and it would make me sick and trembly. They put me on a job making bushing, a light job, but the light jobs weren't steady and I couldn't do the hard jobs. I tried working something like a month, but I didn't make any money and finally left in May."

Plaintiff insists that his insurance was in full force and effect when he was injured and that he was totally and permanently disabled within the purview of the policy, and was so disabled while the policy was in force, and that he should recover.

The plaintiff in his petition sought judgment against the defendant in the sum of $ 2000, the amount alleged to be due under the policy for permanent disability, together with $ 195, the alleged amount due for temporary disability benefits, plus ten per cent of such amount for vexations refusal to pay, and for an additional sum of $ 500 for attorney fees for the prosecution of the suit, and for his costs.

The case was tried to a jury and resulted in a verdict and judgment for plaintiff in the sum of $ 2000 for permanent disability. The items sought for temporary disability, and for delay and for attorney fees were not allowed. Motion for new trial was overruled and an appeal was taken to this court.

The case is before us under eleven assignments of error. The first seven of these assignments go largely to the question of error on the part of the trial court in not directing a verdict under defendant's demurrer. We deem it not necessary to discuss the first five of these assignments in view of what we shall hereinafter say and do with reference to the sixth and seventh of these assignments. The sixth and seventh assignments raise specifically the failure on the part of plaintiff to give notice to the company of the injury complained of, and the delay so long in bringing suit on the policy after the injury. Under assignment six the defendant expresses its complaint in the following language:

"The plaintiff was guilty of laches. It was four years, seven months and three days after he claims to have become totally and permanently disabled before he made an attempt to make proof of...