Hardie v. Metropolitan Life Ins. Co.
| Decision Date | 29 June 1928 |
| Docket Number | No. 20371.,20371. |
| Citation | 7 S.W.2d 746 |
| Parties | HARDIE v. METROPOLITAN LIFE INS. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.
"Not to be officially published."
Action by James Hardie against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.
W. A. Brookshire, of Farmington, for respondent.
Edgar & Banta, of Ironton, for appellant.
This is an action brought by plaintiff, as an employee of the St. Joseph Lead Company, against the defendant insurance company, on a so-called "group" policy of insurance issued by appellant to said company. The policy provided for benefits for total and permanent disability of the employees of the lead company. Verdict and judgment for plaintiff, and defendant appeals.
We think the case can be more logically discussed by stating the facts in connection with the assignments of error as they are taken up, and to do that the points will be considered somewhat out of the order given in the briefs.
The petition alleges that plaintiff, for a long time prior to June, 1922, was and had been in the employ of the lead company, and that in June, 1922, the lead company took out a group insurance policy styled "group No. 368-G." By this policy the defendant insured the employees of the lead company. When this group policy was issued, the lead company issued its certificates to the employees, one of which was delivered to plaintiff and is styled "serial No. 1017." The petition in proper averments sues upon the group policy issued by defendant to the lead company, and is against the insurance company alone. The petition sets forth that plaintiff received a certificate from the lead company showing that he was included in the policy held by it for the employees' benefit. Then the averments are in usual form as to the disability.
It is then alleged that defendant rated the disability of plaintiff as total and permanent, and that prior to November 2, 1923, it paid plaintiff two installments under the policy, that said payments were made about November 2, 1923, and November 2, 1924, but that defendant refused to make any further payments. The suit was for the total amount of the remaining installments, to wit, $1,284, and for interest, and 10 per cent. for vexatious refusal to pay and for $500 attorney's fee.
The answer denied that plaintiff complied with the provisions of the group insurance policy, and particularly that plaintiff failed on demand of the company to furnish due proof of the continuance of his disability, and also denied vexatious refusal to pay.
There was a verdict for plaintiff against defendant for $1,635.37 and costs, being $1,284 on the policy. The jury found that there was no vexatious refusal to pay, but allowed an attorney fee of $300, said sum with interest totaling the amount of $1,635.37. The court ordered a remittitur on the theory that plaintiff was not entitled to recover more than one installment, of $428, together with interest amounting to $38.52, and plaintiff at the request of the court remitted $1,168.85, and judgment was accordingly entered for plaintiff against defendant in the sum of $466.52.
It is insisted that there is error in the petition and in plaintiff's instruction No. 1, which calls for a reversal of the judgment. It is said that the petition mentions and relies upon the so-called certificate which was issued by the lead company to plaintiff, and that instruction No. 1 contains the same vice. The petition has been closely examined, and it leaves us with no doubt that the suit was brought by plaintiff against defendant insurance company upon the group policy issued to the lead company and does not base the cause of action upon the certificate issued by the lead company to the plaintiff. It merely mentions this matter in connection with its cause of action against defendant, and we see no error therein.
Instruction No. 1 need not be set out. This instruction tells the jury that the group policy was issued by defendant to the lead company, and does in that connection refer to the certificate issued by the lead company to plaintiff in order to show the connection of plaintiff with the lead company during the force of the group policy upon which the alleged cause of action is laid. It then requires the jury to find that plaintiff was employed by the lead company on June 2, 1922, and requires the jury to find that he became totally and permanently disabled before he had attained the age of 60 years, and requires the jury to find that he was unable without endangering his health to perform any work for compensation or profit, etc. So the instruction requires the jury to find, after all, whether plaintiff fell within the terms of the provisions of the insurance policy issued by defendant to the lead company. The evidence is undisputed as to the issuance of the group policy to the lead company, and is undisputed that the lead company advised plaintiff by letter, called a certificate, that he was within the provisions of that policy.
Appellant relies strongly upon the case of Gallagher v. Simmons Hardware Co., 214 Mo. App. 111, 258 S. W. 16. There, we had under consideration an insurance policy such as we have here. What we held in that case was that the cause of action arose to an employee on the policy of the insurance company and not on the certificate from the employer to the employee, and that the person insured, or his beneficiary, would under such circumstances be required to rely upon the contract between the insurance company and the employer. That is exactly what was done in this case, and the mere reference in the pleadings, in the evidence and in the instruction to the fact that plaintiff had a letter or a certificate from the employer that he was included in the group policy, is in no wise prejudicial error.
The next point is somewhat more difficult. In the trial of the case there was substantial evidence from which the jury could find that there was total disability. There was testimony from medical men and from lay witnesses tending to show that plaintiff was suffering from such disability, and thus it became a question for the jury. Frost v. Central Business Men's Association (Mo. App.) 246 S. W. 628.
But the policy stipulates that, though the insurance company may begin the payments for permanent disability, yet it may require of the insured afterwards that he furnish "due proof" of a continuance of such disability, and the failure of the insured to meet such requirement bars further installments. Plaintiff, on June 2, 1922, claimed he was injured while working for the lead company. He made application for benefits under the policy. The insurance company admitted plaintiff's claim, and paid him the installment due for 1923. Again in 1924 it paid him the installment for that year. Before the second installment was paid, to wit, in September, 1924, the defendant, through the lead company, called upon plaintiff to furnish proof of the continuance of his disability and furnished him a blank for his physician. Plaintiff took this to Dr. Monroe, who reported his tubercular condition and general health greatly improved, and defendant paid the second installment of $428.
In September, 1925, before the third installment was to be...
To continue reading
Request your trial
-
Equitable Life Assur. Soc. v. Mercantile Com. B. & T. Co.
...Ass'n, 233 Mo.App. 612, 124 S.W.2d 515, 521; Porter v. Equitable Life Assur. Soc., Mo.App., 71 S.W.2d 766, 773; Hardie v. Metropolitan Life Ins. Co., Mo.App., 7 S.W.2d 746, 748. Where the policy provisions did not provide for payments from date of disability but created no liability until p......
-
State ex rel. Metropolitan Life Ins. Co. v. Allen
... ... Continental Casualty ... Company, 111 Mo.App. 504, 86 S.W. 491; Foglesong v ... Modern Brotherhood, 121 Mo.App. 548, 97 S.W. 240; ... Katz v. Union Central Life Ins. Co. (Mo. App.), 44 ... S.W.2d 250; Hurt v. Equitable Life Assurance Society (Mo ... App.), 53 S.W.2d 1101; Hardie v. Metropolitan Life ... Ins. Co. (Mo. App.), 7 S.W.2d 746; Medlinsky v ... Metropolitan Life Ins. Co., 263 N.Y.S. 179; Manuel ... v. Metropolitan Life Insurance Co. (La. App.), 139 So ... 548; McCutchen v. Pacific Mutual Life Ins. Co., 151 S.E ... Relator ... claims that ... ...
-
Farmer v. Metropolitan Life Ins. Co.
...1101. (5) Respondent's instruction No. 2 is a correct statement of the law and was not erroneously given by the court. Hardie v. Metropolitan Life Ins. Co., 7 S.W.2d 746; Hurt v. Equitable Life Assurance Society of the States, 53 S.W.2d 1101; Aetna Life Ins. Company v. Wells, 72 S.W.2d 33; ......
-
Moss v. Metropolitan Life Ins. Co.
...Ins. Co., 53 S.W.2d 703; Millis v. Continental Life Ins. Co., 298 P. 739; Maresch v. Peoria Life Ins. Co., 299 P. 934; Hardie v. Metropolitan Life Ins. Co., 7 S.W.2d 746; Metropolitan Life Ins. Co. v. Davis, 162 S.E. Manuel v. Metropolitan Life Ins. Co., 139 So. 548; Winters Mutual Aid Asso......