Foglesong v. Modern Brotherhood of America

• Decision Date: 05 November 1906
• Parties: FOGLESONG v. MODERN BROTHERHOOD OF AMERICA.
• Court: Missouri Court of Appeals

97 S.W. 240

121 Mo. App. 548

FOGLESONG v. MODERN BROTHERHOOD OF AMERICA.

Kansas City Court of Appeals. Missouri.

November 5, 1906.

1. INSURANCE—TOTAL DISABILITY.

The provision of a benefit certificate that in case of the "permanent and total disability of said member, which renders him unable to carry on or conduct any vocation or calling" half the amount that would have been due in case of his death will be paid the member, will be construed as meaning inability to carry on the vocation or calling which insured is following when he becomes disabled.

2. SAME.

Though one is able to direct to some extent his business of farming and does some work himself, yet he being wholly and permanently disabled from doing all the substantial and material acts necessary to be done, he is within the provision of a benefit certificate providing for payment to him, in case of his permanent and total disability, of half what would have been due in case of his death.

3. SAME—EVIDENCE.

In an action on a benefit certificate to recover under the provision for total disability where there was evidence that plaintiff directed to some extent the business on his farm, defendant is entitled to show fully all that he did in that way.

Appeal from Circuit Court, Schuyler County; Nat M. Shelton, Judge.

Action by John Foglesong against the Modern Brotherhood of America. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Higbee & Mills and Ball & Sparrow, for appellant. A. D. Morris, S. W. Mills, and C. C. Fogle, for respondent.

BROADDUS, P. J.

The plaintiff's suit is to recover indemnity on a benefit certificate issued by defendant, which provided that: "Within a period of 90 days after receipt of satisfactory proofs, of the permanent and total disability of the said member [plaintiff], which renders him unable to carry on or conduct any vocation or calling, and the surrender of this certificate, one-half the amount that would have been due beneficiary in case of the member's death, will be paid said member in full." The plaintiff's wife is the beneficiary named in the certificate, who in case of his death would be entitled to the sum of $1,000. The plaintiff alleges that he has suffered permanent and total disability, and seeks to recover the sum of $500 by reason thereof; it being one-half of said $1,000 to which he would be entitled if he proves his case.

The plaintiff's vocation was that of a farmer, having lived on a farm all of his life. He was at the time of the trial 57 years of age, and seriously afflicted in his right leg, and had been so afflicted for more than three years. The evidence tended to show that the diseased condition of his leg was permanent, and that it would be necessary to amputate it. It appears that in September, 1902, the disease began to make its appearance in plaintiff's right leg. From the beginning of the following December he was confined to his bed for a period of three months. After that the condition of his leg improved so that he could walk upon crutches, and afterwards for a while he walked with the aid of a cane. After July, 1903, he dispensed with medical treatment, and applied leaf tobacco to his diseased leg. It was shown that he directed the work to be done on his farm, and that he performed some labor himself. He drove the wagon while loading and unloading corn, and in hauling coal from the mine. He aided to some extent in cultivating a crop of 2,000 bushels of pickles. He plowed some and helped in the cutting and shocking of oats. Notwithstanding plaintiff performed certain farm labor, there was evidence tending to show that he was disabled from performing substantially the occupation of a farmer. The defendant contends that, as the plaintiff was not disabled from directing his sons in carrying on the business of the farm, and did some of the work himself, his disability was not total. It is also contended that, if he was able to carry on any vocation in life, he had not suffered such total disability, as the terms of the policy required in order for him to be entitled to the indemnity claimed. The plaintiff's insurance was not against his disability as a farmer, but such a total disability as would render him unable to carry on or conduct any vocation or calling. It is defendant's theory that, though plaintiff may not be considered a farmer in the strictest sense; that is, capable of doing farm work, yet, if he was capable of conducting farm work by direction, he was not entitled to recover under the terms of his policy. Bacon on Ben. Soc. & Life Ins. § 595a, supports that theory. He says: "Total disability naturally means totally disabled from all kinds of business unless by the contract the disability is to be only from the usual occupation of the assured." And the law seems to be so stated in Sup. Tent K. of M. of W. v. King, 79 Ill. App. 145; Supreme Tent K. of M. of W. v. Cox, 25 Tex. Civ. App. 366, 60 S. W. 971. If such is to be the construction placed upon the policy in suit, the defendant's demurrer to the evidence should have been sustained. But we are unwilling to adopt such a doctrine, the effect of which would be, practically, to reduce all such contracts to nullities, and to make them the instruments of extracting dues from policy holders without creating any liability on the part of the insurers.

Common knowledge of the occupations in...