Gilby v. Travelers Insurance Company

• Decision Date: 29 October 1957
• Docket Number: No. 15751.,15751.
• Citation: 248 F.2d 794
• Parties: Thaisa L. GILBY, Appellant, v. The TRAVELERS INSURANCE COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

248 F.2d 794 (1957)

Thaisa L. GILBY, Appellant, v. The TRAVELERS INSURANCE COMPANY, a corporation, Appellee.

No. 15751.

United States Court of Appeals Eighth Circuit.

October 29, 1957.

Keith Martin, Kansas City, Mo. (Harry C. Clark, Louis W. Krings and Fred A. Bredehoft, Kansas City, Mo., on the brief), for appellant.

Jack B. Robertson, Kansas City, Mo. (Lyman Field and Rogers, Field, Gentry & Jackson, Kansas City, Mo., on the brief), for appellee.

Before GARDNER, Chief Judge, and VOGEL and VAN OOSTERHOUT, Circuit Judges.

VOGEL, Circuit Judge.

Thaisa L. Gilby, plaintiff below, has appealed from an adverse verdict and judgment of the trial court denying her claim as beneficiary of her deceased husband's $9,000 group life insurance certificate which had been issued to her husband, Harry T. Gilby, as an employee of Panhandle Eastern Pipe Line Company of Kansas City, Missouri, hereinafter called Panhandle. The group life insurance policy upon which the above certificate was based was carried for Panhandle by the Travelers Insurance Company, appellee herein.

Appellant's claim arose from the suicide of Harry T. Gilby on March 7, 1955. The last day Harry T. Gilby worked for Panhandle was January 28, 1955. After that date he did not return to work and did not communicate with Panhandle in any way, nor did Panhandle notify him that he had been discharged. Panhandle had a rule which required the removal from the payroll of any employee who, without explanation, absented himself from work for four consecutive working days. After such removal Panhandle would consider that the subject employee had resigned. Accordingly, Harry T. Gilby was removed from Panhandle's payroll on February 3, 1955. The last day Gilby worked was on Friday, January 28, 1955. He spent a normal weekend with his wife. On Monday morning, January 31, 1955, Mrs. Gilby prepared his breakfast and put up his lunch. He left about seven o'clock a. m. He was gone for two days, after which he was brought home in a drunken condition. He had not been at work during that period. On Wednesday, February 2nd, Gilby "acted all right" but when his wife pleaded with him to return to work he refused, stating that he did not feel like working and that he had something wrong with him that she did not know anything about. On that day, February 2nd, Mrs. Gilby called Panhandle concerning her husband's absence and was told by his supervisor that he had until Friday, February 4th, to return to work. Mrs. Gilby pleaded with her husband every day for some period to go back to work, but he said he was not going back, although she testified he was physically able to work. He claimed he was not satisfied with his job at Panhandle and that he did not like his supervisor. He later told her that he had asked for work on a highway being built nearby and that he had also asked for work elsewhere. On February 7, 1955, Mrs. Gilby asked her husband's supervisor at Panhandle to give him a six-months' leave of absence, which was denied. On February 15, 1955, Gilby applied for unemployment benefits, claiming "lack of work" as his reason for separation from Panhandle. He made himself available for other employment. Harry T. Gilby died on March 7, 1955, from a self-inflicted gunshot wound.

Mrs. Gilby thereupon made claim against the Travelers Insurance Company, appellee, for the amount of the group life insurance certificate issued to him. Her claim was refused apparently on the ground that his employment and insurance coverage based thereon had terminated prior to his death. The subject life insurance certificate provided in part:

"The insurance of any Employee covered under said policy shall end when his employment with the Employer shall end, except in a case where at the time of such termination the Employee shall be wholly disabled and prevented by bodily injury or disease from engaging in any occupation or employment for wage or profit. In such case the insurance will remain in force as to such Employee during the continuance of such disability * * *."

Appellant brought this suit to enforce her claim against appellee. She alleged that from January 28, 1955, until Gilby's death, March 7, 1955, he had been "* * * wholly disabled and prevented by bodily disease from engaging in any occupation or employment for wage or profit * * *". No other theory of recovery was advanced by the appellant in her pleadings. During the trial, however, the appellant broadened her claim by attempting to show that Gilby was still employed by Panhandle at the time of his death because Panhandle admittedly had not notified Gilby that it had discharged him or of its assumption that he had resigned on February 3, 1955. Appellee offered evidence to contradict appellant's claim of employment between January 28, 1955, and March 7, 1955.

At the conclusion of the evidence, the appellant made a motion for a directed verdict on the ground that "the pleadings of the parties herein and the testimony in evidence, presented in this cause conclusively and as a matter of law show that the insurance policy issued upon Harry T. Gilby was in full force and effect at the time of his death, to-wit: March 7th, 1955". The motion was denied and the court submitted the case to the jury on the sole question of Gilby's whole and continuous disability from January 28, 1955, until his death, March 7, 1955. Appellant took exception to the trial court's refusal to instruct the jury on the question of Gilby's employment status at the time of his death. In ruling on the exception, the court stated as follows:

"It is the view of the Court that under plaintiff\'s own testimony, the decedent terminated his employment and was not going back to work, and there was no occasion to charge the jury from that situation."

The jury returned a verdict adversely to the appellant. Appellant thereupon moved for judgment notwithstanding the verdict on the ground (1) that all of the evidence disclosed that the policy was, on March 7, 1955, in full force and effect; (2) that plaintiff's husband, Harry T. Gilby,...