Continental Casualty Co. v. Wagner

• Decision Date: 02 May 1952
• Docket Number: No. 14480.,14480.
• Citation: Continental Casualty Co. v. Wagner, 195 F.2d 936, 31 ALR 2d 1216 (8th Cir. 1952)
• Parties: CONTINENTAL CASUALTY CO. v. WAGNER.
• Court: U.S. Court of Appeals — Eighth Circuit

31 ALR 2d 1216, 195 F.2d 936 (1952)

CONTINENTAL CASUALTY CO. v. WAGNER.

No. 14480.

United States Court of Appeals Eighth Circuit.

April 10, 1952.

Rehearing Denied May 2, 1952.

James C. Jones, Jr., St. Louis, Mo. (Lon Hocker and Jones, Hocker, Gladney & Grand all of St. Louis, Mo., on the brief), for appellant.

James S. McClellan, St. Louis, Mo. (Richard D. Gunn and Willson, Cunningham & McClellan, all of St. Louis, Mo., on the brief), for appellee.

Before GARDNER, Chief Judge, and RIDDICK and COLLET, Circuit Judges.

RIDDICK, Circuit Judge.

The question on this appeal is the correct interpretation of a policy of insurance by which the appellant, Continental Casualty Company, insured the appellee, Wagner, against loss of business time caused by accidental injury or sickness.

The policy is an Ohio contract issued on June 27, 1922, for an annual premium of $116. The insurer agreed to pay the insured an indemnity of $200 a month in the event of a total loss of business time. So far as material to the question stated, the provisions of the contract are as follows:

"The Insured is by occupation a Secretary, and Assistant General Manager, Direction of Sales and Business Manager classified by the Company as — Select.

* * * * * *

"* * * if the Insured shall be disabled by accidental injury or by sickness and by reason of such disability shall necessarily suffer loss of business time, the Company will pay indemnity for such loss as follows: —

"A. Total Loss of Business Time. If the said loss is of all business time, the Company will pay said monthly indemnity so long as the Insured lives and continuously suffers such total loss.

"B. Partial Loss of Business Time. If the said loss of business time is not total but results from the physical inability of the Insured to perform work substantially essential to the duty or duties of his occupation, and if further such partial loss of time immediately succeeds a period of total loss of time for which indemnity is payable under the provisions of this part, the Company will pay one-half said monthly indemnity for the continuous period of such partial loss of time not exceeding six months.

* * * * * *

"This policy includes the endorsements and attached papers if any, and contains the entire contract of insurance except as it may be modified by the Company\'s classification of risks and premium rates in the event that the Insured is injured or contracts sickness after having changed his occupation to one classified by the Company as more hazardous than that stated in the policy * * * in which event the Company will pay only such portion of the indemnities provided in the policy as the premium paid would have purchased at the rate but within the limits so fixed by the Company for such more hazardous occupation.

* * * * * *

"If the Insured shall at any time change his occupation to one classified by the Company as less hazardous than that stated in the policy, the Company, upon written request of the Insured, and surrender of the policy, will cancel the same and will return to the Insured the unearned premium.

* * * * * *

"At any time during the life of this policy, if the Insured changes his occupation to one different from that stated in this policy, the Company hereby agrees, upon the surrender of this policy, to issue in lieu thereof, upon the written request of the Insured, a new policy containing the same provisions as this policy, except a change in the amount of the benefits payable, the new policy to provide such an amount payable for loss of life and disability as the premium paid for this policy will purchase at the rates but within the limits fixed by the Company for such different occupation."

In 1924 the insured moved from Cleveland, Ohio, to St. Louis, Missouri, where he was employed by St. Louis University as a teacher of public speaking. The insurer was notified of this change of occupation and residence. From 1924 until February 1946 the insured continued in his work at the University. He continued to pay and insurer continued to accept the premiums on the policy. In February 1946 as the result of illness, necessitating an operation for removal of a lung, the insured became and has since remained totally unable to engage in the occupation of teaching public speaking.

From February 16, 1946, to September 16, 1950, the insurer paid the insured the monthly indemnity of $200 provided by the policy for total continuous loss of business time. It refused to pay the monthly indemnity after September 16, 1950. On the date of the trial in the District Court five of these payments were past due. On September 16, 1950, the insured was totally unable to engage in any occupation.

From July 1948 for a period of thirteen and one-half months the insured was employed by the Oblate Fathers in St. Louis in connection with a campaign for charitable contributions for the construction of a building known as the "King's House." In this work he consulted with the campaign chairman, helped prepare solicitors' aids and subscription forms, checked subscriptions and records, prepared letters, notices, and reports, controlled disbursements, and supervised the office of the campaign headquarters. For this work he was paid a salary of $535 a month. The insured served in substantially the same capacity from August 1949 to August 1950 in a drive for funds for the construction of the Cardinal Glennon Hospital, receiving a salary of $550 a month.

During the insured's employment in these charity drives he made monthly reports to the insurer on blank forms furnished by it. On the forms the question, "What work, if any, can you do?" was answered either "none," "none yet," or "none as yet." Also during this employment the insurer knew through inquiry of its adjuster that insured was working. The adjuster did not ask if the insured was being paid for his work and the insured did not tell the adjuster that he was receiving compensation.

This action was brought by the insurer to recover the disability payments made to the insured during the period of his gainful employment. The insured contends that the expression "total loss of business time," as used in the policy, means such a loss in any occupation in which insured...