Grafe v. Fidelity Mut. Life Ins. Co.

• Decision Date: 02 July 1935
• Docket Number: No. 23307.,23307.
• Citation: 84 S.W.2d 400
• Court: Missouri Court of Appeals
• Parties: GRAFE v. FIDELITY MUT. LIFE INS. CO.

84 S.W.2d 400

GRAFE v. FIDELITY MUT. LIFE INS. CO.

No. 23307.

St. Louis Court of Appeals. Missouri.

July 2, 1935.

Rehearing Denied July 16, 1935.

Appeal from St. Louis Circuit Court; James F. Green, Judge.

"Not to be published in State Reports."

Suit by Harry E. Grafe against the Fidelity Mutual Life Insurance Company. From a judgment for plaintiff, each party appeals.

Reversed and remanded with directions.

Jones, Hocker, Gladney & Jones, of St. Louis, for appellant.

Mason & Flynn, of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action on four policies of insurance. The petition is in four counts. The first count is based on policy No. 327917, the second count on policy No. 328261, the third count on policy No. 340920, and the fourth count on policy No. 365475. Policy No. 327917 is for $5,000, and the annual premium is $130.70, payable on November 26th, in each year. Policy No. 328261 is for $4,000, and the annual premium is $104.56, payable on November 26th, in each year. Policy No. 340920 is for $1,000, and the annual premium is $27.29, payable on November 27th, in each year. Policy No. 365475 is for $10,000, and the annual premium is $284.70, payable on July 14th, in each year.

The policy declared on in the first count contains as a part of the insuring clause the following provision:

"If the insured become totally and presumably permanently disabled prior to the anniversary of this policy on which insured's age at nearest birthday is sixty years, then the Company agrees to pay to the insured subject to the terms and conditions of Section 6, a Disability Income of $50.00 per month."

The policy declared on in the second count contains as a part of the insuring clause the same provision except that the disability income is $40 per month instead of $50 per month.

The policy declared on in the third count contains as a part of the insuring clause the following:

"If the insured become totally and presumably permanently disabled prior to the anniversary of this policy on which insured's age at nearest birthday is 65 years, then, subject to the terms and conditions of Section 6, the Company agrees to waive payment of each premium as it becomes due and to pay to the insured a Disability Income of $10.00 per month."

The policy declared on in the fourth count contains as a part of the insuring clause the same provision except that the disability income is $100 per month instead of $10 per month.

Section 6 of the policy declared on in the first count contains the following provisions:

"After the premium for one full year shall have been paid hereunder, and prior to default in payment of any subsequent premium, upon receipt by the company at its head office of due proof that the insured became totally and presumably permanently disabled after the insurance under this policy became effective, the company will allow disability benefits upon the terms and conditions hereinafter set forth in this section.

"Disability shall be deemed to be total whenever the insured becomes wholly disabled by bodily injury or disease, so that he is prevented thereby from performing any work or from following any occupation whatsoever for compensation, gain or profit, and disability shall be presumed to be permanent after the insured has been continuously so disabled for three months or more.

"Regardless of insured's age at date of such disability, the company will, during the continuance of such disability, waive payment of each premium mentioned on the face of this policy, as it becomes due, beginning with the first annual premium due after approval of such proof by the company. Any annual premium due prior to such approval must be paid in accordance with the terms of this policy, but if due after receipt of such proof, will, if paid, be refunded upon approval of such proof.

"If such disability occur prior to the anniversary of this policy on which the insured's age at nearest birthday is sixty years, then, in addition to waiving the payment of premiums as aforesaid, the company will allow to the insured, as of the date of receipt of such proof, a disability income of $50.00, and a like amount on the corresponding day of each calendar month thereafter until insured's death, or the prior maturity of this policy, if such disability continue until that time. Such disability income payments as shall have become due since date of receipt of such proof will be paid upon approval of such proof by the company and subsequent disability income payments will be made when due.

"After approval of proof of such disability under this section, the company may demand from time to time due proof of the continuance of such total disability, but not oftener than once a year after such disability has continued for two full years; and if such proof be not furnished, or if it appear to the company that the insured is able to perform any work or to follow any occupation whatsoever for compensation, gain or profit, then no further premiums will be waived and no further disability income payments will be made."

Section 6 in each of the other policies declared on in the second, third, and fourth counts contains the same provisions except that the disability income is $40, $10, and $100 per month, respectively, instead of $50 per month.

The cause was tried on an agreed statement of facts as follows:

"For the purposes of the trial of the above cause, and in order to avoid the introduction of evidence by either party with reference to the matters covered herein, it is agreed that the four policies of insurance described in the petition were issued and delivered by the defendant on the dates therein alleged, and that all of said policies were, at all times mentioned in the petition, in force as existing contracts between the plaintiff and the defendant, and the said policies are herein referred to and made part hereof as Exhibits A, B, C and D, and are to be treated as constituting part of the record in this cause, and all provisions in the same are in evidence as part of this agreed statement of facts.

"It is agreed that on the 23rd day of July, 1930, the plaintiff, as a result of illness, became totally disabled and that said total disability continued for five months and two days, that is, until December 25, 1930; that said total disability occurred after premiums for one full year had been paid under each of said policies and prior to the anniversary of the policies on which the insured's age at nearest birthday was sixty years; and that by virtue of said illness, the plaintiff became and was totally disabled by disease, so that he was prevented thereby from performing any work or following any occupation whatsoever for compensation during the entire period of five months and two days as aforesaid, but that the plaintiff was not totally disabled after December 25, 1930.

"It is further agreed that during the period of said disability as aforesaid, plaintiff paid an annual premium of $130.70 to the defendant on the policy described in the first count of the petition, and a premium of $104.56 on the policy described in the second count of the petition, and a premium of $27.29 on the policy described in the third count of the petition.

"It is further agreed that demand has been made on the defendant by the plaintiff for the return to the plaintiff of the premiums so paid on said policies as aforesaid, during the total disability of the plaintiff, and that the plaintiff has also demanded of the defendant the payment of monthly income benefits under said policies, as aforesaid, during the period that plaintiff was totally disabled as aforesaid, amounting to the sum of $253.33 under the policy mentioned in the first count of the petition, and the sum of $202.66 under the policy described in the second count of the petition, and the sum of $56.66 under the policy described in the third count of the petition, and $506.66 under the policy described in the fourth count of the petition, which defendant has refused to pay.

"It is further agreed that on or about the 15th day of November, 1930, and while plaintiff was still totally disabled, he, the plaintiff, informed and advised one Frederick W. Rosen, agent of the defendant, who had solicited plaintiff's applications for said policies and who had delivered said policies to plaintiff, that he, the plaintiff, had been totally disabled since July 23, 1930, and on the 15th day of November, 1930, plaintiff requested the said Frederick W. Rosen to procure from the defendant its blank forms for making proof of plaintiff's total disability and to deliver said blanks to the plaintiff so that he, plaintiff, could make and furnish due proof of his disability to the defendant, as required by the policies; that the said Rosen stated and advised the plaintiff that his disability was not permanent, as required by the policy, and declined and refused to make demand on the defendant for blanks on which plaintiff could make proof of his disability.

"It is further agreed that no demand or request was ever made by the plaintiff on the defendant for blanks on which plaintiff could make proof of his disability to the defendant, other than the requests so made by the plaintiff on said Rosen on the 15th day of November, 1930, as aforesaid, until on or about the 28th day of November, 1931, when the plaintiff made demand at defendant's office in the City of St. Louis, Missouri, for blanks on which to make proof of his disability, and that the defendant, except for the aforesaid notice and knowledge to the said Rosen, had no notice or knowledge of the disability of the plaintiff from the 23rd of July, 1930, until the 25th of December, 1930, until on or about the 28th day of November, 1931, when request was made by the plaintiff at defendant's St. Louis office for said blanks as aforesaid.

"It is further agreed that Frederick W. Rosen, except for such authority, if any, as may be implied from the facts...