Cooper v. Metropolitan Life Ins. Co.

• Decision Date: 02 June 1936
• Docket Number: No. 23341.,23341.
• Citation: 94 S.W.2d 1070
• Parties: COOPER v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

94 S.W.2d 1070

COOPER v. METROPOLITAN LIFE INS. CO.

No. 23341.

St. Louis Court of Appeals. Missouri.

June 2, 1936.

Rehearing Denied June 16, 1936.

Appeal from Circuit Court, Madison County; Hon. Taylor Smith, Judge.

"Not to be published in State Reports."

Action by Charles E. Cooper against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Edgar & Banta, of Ironton, and Fordyce, White, Mayne & Williams and F. M. Switzer, Jr., all of St. Louis (Leroy A. Lincoln, of New York City, of counsel), for appellant.

Davis & Damron, of Farmington, and L. W. Chapman, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for the monthly disability benefits provided by a group insurance policy issued by defendant, Metropolitan Life Insurance Company, to the St. Joseph Lead Company for the benefit and protection of the latter's employees of whom plaintiff was one until the time of the termination of his employment on March 26, 1932. The verdict of nine jurors was in favor of plaintiff, and against defendant, in the sum of $228.35 (evidently representing the aggregate of five monthly installments found to be due plaintiff up to the time of the institution of suit); and from the judgment rendered in conformity with the verdict, the appeal of defendant to this court has followed in the usual course.

The substance of the disability provision of the policy is that upon due proof to defendant that any employee of the lead company, while insured under the policy, and prior to his sixtieth birthday, has become totally and permanently disabled as the result of bodily injury or disease so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit, defendant will waive the payment of further premiums as to such employee, and six months after such proof of disability, and in lieu of the payment of insurance at the employee's death, will commence to pay monthly installments of disability benefits computed as to number and amount on the basis of the amount of insurance in force on the life of the employee.

In his petition plaintiff counted upon the fact that at and prior to the termination of his employment with the lead company, as well as at all times thereafter, he had been and was totally, permanently, and continuously disabled by bodily afflictions and disease so as to be prevented from engaging in any occupation and performing any work for compensation or profit.

The answer of defendant was a general denial, followed by a specific denial that plaintiff was then totally and permanently disabled within the terms and meaning of the policy, or that he was totally and permanently disabled at and prior to the time he left the employment of the lead company and during the time the insurance policy in question was in force as to him.

The evidence for plaintiff showed, in brief, that at the time of trial in 1934 plaintiff was fifty-nine years of age; that he had had a tenth grade education, but for all the intervening years had been employed as a common laborer; and that prior to the termination of his employment by the lead company in its mines in and around Flat River, Mo., plaintiff had become totally and permanently disabled by heart and lung disease so as to prevent him thereafter from engaging in any occupation or performing any work of such a character as he was fitted to perform in view of his age, training, experience, education, and physical condition.

In fact, defendant does not now question the sufficiency of plaintiff's evidence to have made the case one for the jury as regards the issue of its liability to plaintiff, though in the trial of the case it did offer medical evidence which, if believed by the jury, would have warranted a finding that plaintiff's condition was not one of total and permanent disability within the coverage of the policy.

Defendant has some three assignments of error for our consideration, among which is the point that the lower court erred in failing to sustain the objection of defendant's counsel to the reference of one of plaintiff's counsel in his closing argument to the jury to the failure of defendant to have produced the former fellow employees of plaintiff as witnesses in the case. It also suggests that the court was in error in refusing to rebuke plaintiff's counsel because of such argument, and in refusing to discharge the jury and declare a mistrial of the case on account of the prejudicial effect of such remarks.

The incident in question is embodied in the following excerpt from the record:

"Mr. Davis: Why don't this little old insurance company bring the employees, the fellow employees of the plaintiff at the Lead Company, here to dispute the statements made by Mr. Cooper, if they are not true?

"Mr. Banta: I object to the statement of Mr. Davis, to wit, `Why don't this little old insurance company bring employees of the Lead Company here to testify,' etc., for the reason that it is designed to unduly appeal to the prejudice of the jury, and for the further reason that the witnesses referred to by Mr. Davis are available alike to the plaintiff as they would be to the defendant. I object to it for the further reason that it is improper argument of counsel, and is made for the purpose of prejudicing the jury.

"The Court: Gentlemen of the jury, as to the argument about `a little old insurance company,' the objection will be sustained; as to the rest of the objection, it is overruled.

"Mr. Banta: I except to the ruling of the Court, and move that the counsel be rebuked for his improper argument.

"The Court: The motion is denied.

"Mr. Banta: I move that the Court discharge the jury and declare a mistrial because of the Court's failure to sustain any objection and rebuke counsel for his improper argument.

"The Court: The motion will be overruled.

"Mr. Banta: I except to the ruling of the Court."

We cannot escape the conclusion that the argument complained of was improper and prejudicial to the point that the court should have unequivocally sustained the objection of defendant's counsel to the whole of it.

Of course, the failure of a party litigant to produce, or his suppression of, evidence which is peculiarly within his knowledge or under his control, and which he would naturally be expected to produce if favorable to him, gives rise to a legitimate inference that its production would have resulted unfavorably to him, and consequently entitles counsel for the opposing party, in the course of his argument to the jury, to comment on his adversary's failure to have produced such evidence. This is a well-settled principle of the law, and is fully recognized by learned counsel for both parties to the cause. However, the converse of the rule is equally true, which is that no unfavorable inference may be drawn, and no unfavorable comment may be made by counsel in argument to the jury, on account of the nonproduction of a witness whose evidence was equally available to either party. Atkinson v. United Rys. Co., 286 Mo. 634, ...