Coleman v. Metropolitan Life Ins. Co.

• Decision Date: 02 May 1939
• Docket Number: No. 24954.,24954.
• Citation: 127 S.W.2d 764
• Parties: COLEMAN v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

127 S.W.2d 764

COLEMAN v. METROPOLITAN LIFE INS. CO.

No. 24954.

St. Louis Court of Appeals. Missouri.

May 2, 1939.

Appeal from St. Louis Circuit Court; Thomas J. Rowe, Jr., Judge.

"Not to be reported in State Reports."

Suit by Randolph Coleman against the Metropolitan Life Insurance Company to recover benefits provided for in a group insurance policy for the loss of the sight of the plaintiff's eye. Judgment for plaintiff, and the defendant appeals.

Judgment reversed and cause remanded with directions.

Fordyce, White, Mayne, Williams & Hartman and R. E. LaDriere, all of St. Louis, for appellant.

Julius L. Block, Cecil Block and Arnot L. Sheppard, all of St. Louis, for respondent.

McCULLEN, Judge.

This suit was brought by respondent, as plaintiff, to recover benefits provided for in a group insurance policy for the loss of the sight of plaintiff's left eye. It was begun before a justice of the peace of the City of St. Louis, Missouri, where judgment was rendered in favor of plaintiff. An appeal was taken by defendant to the Circuit Court, City of St. Louis, where it was tried before the court and a jury, resulting in a verdict and judgment in favor of plaintiff against defendant in the sum of $500, the amount sued for, with interest, and $200 attorney's fees and $50 as penalty for vexatious refusal to pay, the total amount of the judgment being $822.08. From that judgment defendant has duly appealed to this court.

Plaintiff's petition alleged that, on November 1, 1933, defendant issued its group insurance policy under the terms and provisions of which plaintiff was insured, and in which defendant agreed to pay plaintiff, while in the employ of the St. Louis-San Francisco Railway Company and while insured under said policy, the sum of $500 in the event the insured sustained the total and irrecoverable loss of the sight of one eye; that on May 18, 1935, while plaintiff was in the employ of said railway company and while said group policy was in force and effect, plaintiff received an injury to his left eye, and as a direct and proximate result thereof he has suffered the total and irrecoverable loss of the sight of his left eye; that due proof of the loss was furnished to defendant and demand for payment was duly made but defendant has refused to pay. Plaintiff's petition further contained allegations that defendant vexatiously refused to pay, and concluded with a prayer for $500 together with a penalty of ten per cent. additional amounting to $50, and $200 as attorney's fees, making a total of $750.

No answer was filed by defendant either in the justice of the peace court or in the circuit court.

Defendant contends that the trial court erred in refusing to direct a verdict in its favor at the close of the case. This makes necessary a review of the evidence.

Plaintiff testified that he was forty-eight years old at the time of the trial; that he was employed by the Frisco Railroad Company at its Lindenwood shops, having been with the company for eighteen years as a grease cup man; that his duties were to put hard grease in the driving rods on locomotives. He identified and introduced in evidence plaintiff's Exhibit No. 1, the certificate of insurance from the Metropolitan Life Insurance Company certifying that he was insured under Group Policy No. 6770-GHLD. He testified that he received the certificate from defendant company, and that it was in full force and effect on May 18, 1935; that he paid part of the premiums and the Frisco Railroad Company paid part; that, on May 18, 1935, while he was greasing the wheel of a passenger engine, a fellow employee who was spraying the wheel with paint, accidentally squirted paint in plaintiff's eyes; that it "seemed like a splinter went in, too, but I worked on to 4:30, and the next morning they sent me to the Frisco Hospital"; that at the time he got the paint in his eyes, plaintiff was two or three feet from the painter who was blowing paint around the wheel with an air hose and syphon which had about eighty or ninety pounds pressure; that he got paint in both eyes, a little in the right but mostly in the left eye, which affected the sight of his left eye immediately and he could not see out of that eye and has not seen since; that he made complaint to his superior officer the next morning, who sent him to the Frisco Hospital; that they did not keep colored patients at that hospital and he did not get to see the eye doctor until the next day; that the eye doctor looked at his eye and put a little medicine in it and he went back for six or seven days, but his eye was not getting any better; that he was not able to see anything out of the eye during the time he received treatment at the Frisco Hospital; that he then went to the City Hospital where he remained a patient fourteen or fifteen days under the treatment of Dr. Wilson, who put medicine in the eye; that he then went home and was off about six or seven weeks; that the Frisco Railway Company sent him to Dr. Tooker; that he was out of work about six or seven weeks, during which time he filled out a proof of loss and gave it to the timekeeper at the Frisco Shop, who furnished him with blank forms and always took care of those claims against the Metropolitan Life Insurance Company; that he gave the forms back to the timekeeper after they were filled out; that, after he returned to work, he continued to work for two or three months before he was off again, and then defendant sent a doctor to his house and plaintiff filled out another form for him, and he was taken to Dr. Woodruff on Grand and Olive Street, who made an examination of him; that his claim was never paid by the defendant that after he went to Dr. Woodruff's office for an examination, he went to the office of defendant company in the Frisco Building where he talked to a man whose name he could not recall; that it was the group insurance office in the Frisco Building at Ninth and Olive Streets; that he saw the manager and asked if he had heard anything from the insurance company and the manager said "No" but that he was looking for it every day; that afterwards plaintiff went back to Dr. Wilson, who treated him for two or three weeks at his office; that he was working part of the time during this period; that the next treatment he had was at Barnes Hospital in June, 1937, where he was for seven or eight days because of his left eye which was still paining him; that he was around home a couple of weeks, and then went back to work but had to go back to the hospital, and they took his eye out; that the eye was removed on September 8, 1937, by Dr. McKenzie; that after about thirteen days he went back to work for the Frisco Railroad; that he never had any trouble with either of his eyes before May 18, 1935, and did not have any treatment of any character for his eyes prior to that time; that he was wearing glasses at the time of the trial but did not wear them before May 18, 1935.

It was admitted by plaintiff's attorney that plaintiff received four checks from defendant totaling $78.50 for temporary disability after the injury to his eye, but not as payment for loss of the eyesight or dismemberment.

Plaintiff identified defendant's Exhibit B, a form of "Statement of Claim", dated June 3, 1935, containing a statement on the back thereof by Dr. Macon. He also identified defendant's Exhibit C, another "Statement of Claim" which contains a statement on the back thereof by Dr. Wilson. Defendant's Exhibit D, a "Supplementary Report of Attending Physician", dated November 26, 1935, and signed by Dr. Wilson, and Exhibit E, "Statement of Claim for Dismemberment", dated November 6, 1935, with a statement on the back thereof by Dr. Wilson, were also identified by plaintiff. The exhibits were introduced in evidence by defendant. Exhibit F introduced in evidence by defendant is a blank form entitled "Medical Examiner's Report", dated December 4, 1935, which contains the signature "G. Jones" in the space provided for signature of the medical examiner for the company. None of the sixteen spaces for answers to questions on the face of this exhibit is filled out. Written across the face of this blank form, over the signature "G. Jones", appears the following: "See reverse for a stat. from Randolph Coleman & also find enclosed a statement from Dr. Woodruff eye specialist who examined his eye Nov. 5, 1935." On the back of said form, over the signature of plaintiff and signed "G. Jones, M. D., 12-4-35", in handwriting exactly similar to that of the "G. Jones, M. D.", signature, is a statement: "My eyes were injured while I was at work May 18. Left eye more severely injured than right one. I returned to work June 16th. The left eye was still under treatment & the vision in it was not normal. It was not as good as it had been before the accident. I worked pretty steady up to Oct. 20. At that time the left eye started to pain me severely & the eye became entirely blind about Oct. 23d. I am still under treatment for eye."

Exhibit G introduced in evidence by defendant is "A Statement of Claim" on a form of defendant company, dated May 7, 1937, and signed by E. B. Alvis, M. D.

Dr. Wilson testified on behalf of plaintiff that he served as an examiner of eyes during the war; that he examined and treated plaintiff in City Hospital No. 2 on two or three occasions but could not remember the dates; that he saw plaintiff at witness' office in October, 1935; that he remembered plaintiff at the City Hospital, and his record showed that after plaintiff left the hospital he came to witness on various dates between October 23rd and November 25th, 1935; that plaintiff's eyesight was gone when witness saw him at the City Hospital; that the eye was inflamed and it looked like traumatic cataract; that the eye was painful and very much inflamed; that, in the opinion of the witness, the cataract was caused by force; that traumatic cataract can come from injury or disease; that, in his...