Cope v. Central States Life Ins. Co., 22189.

• Decision Date: 07 February 1933
• Docket Number: No. 22189.,22189.
• Citation: 56 S.W.2d 602
• Court: Missouri Court of Appeals
• Parties: COPE v. CENTRAL STATES LIFE INS. CO.

56 S.W.2d 602

COPE v. CENTRAL STATES LIFE INS. CO.

No. 22189.

St. Louis Court of Appeals. Missouri.

February 7, 1933.

Rehearing Denied February 21, 1933.

Appeal from Cape Girardeau Court of Common Pleas; O. A. Knehans, Judge.

"Not to be published in State Reports."

Action by Roy James Cope against the Central States Life Insurance Company. Judgment for plaintiff, and defendants appeal.

Reversed and remanded.

E. M. Grossman, of St. Louis, and William N. Barron, of Poplar Bluff, for appellant.

Rush H. Limbaugh, of Cape Girardeau, and Lawrence E. Tedrick, of Poplar Bluff, for respondent.

BENNICK, C.

This is an action which is founded upon the permanent total disability benefit provision of a policy of life insurance which was issued to plaintiff, Roy James Cope, on October 31, 1929, by defendant, Central States Life Insurance Company.

So much of the provision in question as concerns the case at hand was as follows:

"The Company will pay to the insured an income of $10 each month for each One Thousand Dollars of the face amount hereof if the insured, before attaining age sixty, shall become totally and permanently disabled as hereinafter defined. The first payment of such monthly income shall be made six months after the Company's approval of proofs of such disability and monthly payments of the same amount will be continued for the remainder of the insured's disabled life and shall be in addition to all other benefits provided by this policy.

"The Company will also waive payment of premiums on this policy commencing with the anniversary of the policy next succeeding the date of approval by the Company of proofs aforesaid. * * *

"Total and permanent disability may be due either to sickness or accident occurring while this policy is in full force before default in the payment of any premium, but not before six months from the date hereof, and must be such that the insured thereby is and will be permanently, continuously and wholly prevented from engaging in any gainful occupation. Proof of such disability must be furnished to the Company while this policy is in full force and effect, and before default in the payment of any premium."

It will be observed from the language quoted that the company was under no liability to pay benefits for a permanent total disability occurring, or resulting from sickness or accident occurring, within the first six months of the policy; and the controversy between the parties was not so much whether plaintiff had sustained a permanent total disability within the meaning of the policy, as whether the same, or the sickness giving rise thereto, had occurred within the period of the first six months. In other words, it was defendant's contention that the disability, or at least the sickness which had resulted therein, had occurred within the initial period of six months following the issuance of the policy, and that it was therefore not liable to plaintiff thereunder, while his contention was that neither his disability nor the sickness which had brought the same about had occurred until after six months so that he was entitled to the payment of the benefits provided by the policy.

In his petition, plaintiff pleaded that he had become totally and permanently disabled on August 27, 1930, and that thereafter he had requested defendant to furnish him the necessary blanks and papers for making proof of his claim, but that defendant had failed to comply with his request. The answer of defendant was a general denial.

Upon a trial to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the total sum of $292.12, representing the benefits due under the policy with interest, together with an item for premiums paid after a waiver of premiums should have been effective. Judgment was rendered accordingly; and, after an unavailing motion for a new trial, defendant has duly appealed.

It is hardly necessary to mention that, in proceeding to state the facts which bear upon the question of plaintiff's right to have recovered, we must accord him the most favorable view of the whole evidence, including the benefit of the fair and legitimate inferences deducible therefrom.

Plaintiff was originally an agent for the Home Life Insurance Company, having entered its employ on March 30, 1929. In April, 1929, he secured a policy from that company, containing a permanent total disability provision of like effect to that in the policy now under review. In September, 1929, he began work as a soliciting agent for the defendant herein, and on October 31, 1929, obtained the policy which is now in suit.

In January, 1930, plaintiff had an attack of influenza, although it was not of sufficient severity to require treatment from a physician. In fact, from the time he secured his policy from defendant, he was not treated for any sickness by a physician until on or about April 29, 1930, when he entered an institution in Dwight, Ill., to receive treatment for alcoholism. Prior to that time he had continued to work actively for defendant.

About May 28, 1930, plaintiff was discharged from the Dwight, Ill., institution, and upon his return to his home resumed his work for defendant. This work consisted of making collections on premium notes, bringing his files up to date, attending to correspondence, making remittances to defendant, and soliciting insurance.

On June 5, 1930, plaintiff was examined by Dr. U. A. Presnell of Kennett, as well as by his brother, Dr. E. G. Cope, of Hornersville; and on June 10, 1930, he entered the Veterans' Hospital at Jefferson Barracks, where he was treated for chronic bronchitis, and examined with a view to pulmonary tuberculosis, which he, his brother, and Dr. Presnell all suspected he had. After a course of examinations and treatment, plaintiff was informed that no evidence of active tuberculosis could be found, and on August 15, 1930, he was discharged from the Veterans' Hospital as ready to go back to work.

He thereupon returned to his home, and prepared to go back to work, and, in fact, did do some work on his prospect file, looked after his correspondence, and mailed out statements. However, on or about August 24, 1930, he again became sick, and his testimony was that after August 27th, he had been sick and unable to do work of any kind. The nature of his illness was that he felt "achey," had a fast pulse, a little temperature, and a severe headache.

After these symptoms developed, and on August 29, 1930, plaintiff was taken by his brother, Dr. Cope, to Memphis, Tenn., for an examination by Dr. Conley H. Sanford, a diagnostician. Dr. Sanford's testimony was that in his first examination he found evidence of infected tonsils and very rapid pulse, but nothing else abnormal. He also testified that by an X-ray examination he found evidence that plaintiff had previously suffered from pulmonary tuberculosis, but found no evidence of active tuberculosis.

On October 13, 1930, plaintiff was again examined by Dr. Sanford, and on this occasion the doctor was able to make a positive diagnosis of subacute bacterial endocarditis, bacteremia hemolytic streptococci, and chronic tonsilitis, all of which rendered plaintiff wholly unable to engage in any gainful occupation, and from which his chances to recover were negligible. Subsequent examinations were made by Dr. Sanford on March 13, 1931, and August 4, 1931, both of which merely confirmed his previous diagnosis.

Dr. F. L. Kneibert, of Poplar Bluff, testified that he examined plaintiff on December 11, 1930, and again on October 8, 1931, and his diagnosis of plaintiff's condition, including the permanency and totality of his disability, was the same in all respects as that, of Dr. Sanford. His testimony is of particular importance in fixing the beginning of the disability, in that he testified that in his opinion the endocarditis went back in point of time as far as the daily elevation in plaintiff's temperature and palpitation of the heart, all of which, according to the most favorable testimony, had their beginning no sooner than May, 1930. This, of course, was after the expiration of the first six months of the life of the policy.

The controversy in this case arises principally from the fact that on August 23, 1930, plaintiff made application to the Home Life Insurance Company for disability benefits under its policy issued to him in April, 1929, alleging in his application that he had been disabled since April 27, 1930, and that his disability was attributable to tuberculosis which started in the previous January with pleurisy pains and cold settling on his chest. The significance of this feature of the case lies in the fact, as will be instantly noted, that any disability accruing on April 27, 1930, which was within the period of the first six months of the policy issued by the defendant herein, entailed no liability upon defendant for the payment of benefits under its policy.

Along with plaintiff's application to the Home Life Insurance Company was submitted the statement of his brother, Dr. Cope, who...