Harms v. Mutual Life Ins. Co. of New York, 24955.

Citation127 S.W.2d 57
Decision Date04 April 1939
Docket NumberNo. 24955.,24955.
PartiesHARMS v. MUTUAL LIFE INS. CO. OF NEW YORK.
CourtCourt of Appeal of Missouri (US)

Appeal from St. Louis Circuit Court; Max G. Baron, Judge.

"Not to be reported in State Reports."

Action by Dorothy Harms against the Mutual Life Insurance Company of New York to recover total and permanent disability benefits under a policy of life insurance. Judgment for plaintiff, and the defendant appeals.

Judgment affirmed on condition of remittitur and otherwise reversed and remanded.

Jones, Hocker, Gladney & Grand and William G. O'Donnell, all of St. Louis, for appellant.

Frank H. Haskins, of St. Louis, for respondent.

HOSTETTER, Presiding Judge.

This is an action based on the total and permanent disability benefit clauses of a policy of life insurance, and was instituted by plaintiff on May 19, 1937, in the circuit court of the city of St. Louis.

The second amended petition, on which the case was tried, contained averments which, abbreviated, are as follows:

That defendant issued and delivered to plaintiff a policy of insurance dated August 25, 1925, for $3000, the end of the endowment period of said policy being twenty years thereafter; that by the terms of the policy the written application executed by plaintiff and the premiums paid and to be paid were named as a consideration and inducement for the issuance of the policy and made a part of said policy and declared to constitute, together with the policy, the entire contract between plaintiff and defendant and that if plaintiff, before attaining the age of sixty years and prior to the end of the endowment period, and while no premium on the policy was in default, became totally and presumably permanently disabled and should furnish the company due proof of such total and permanent disability the defendant would, during the remainder of plaintiff's life, or as long as such disability continued, pay to her a monthly income of $10 per $1000 face amount of the policy beginning upon the due proof of such disability; that it was further provided by the policy that total disability should, during its continuance, be presumed to be permanent if such disability was the result of conditions which rendered it reasonably certain that such disability would continue during the remaining lifetime of the plaintiff or if such disability should have existed continuously for ninety days; that plaintiff is under the age of sixty years and no premium is, or ever has been, in default and that plaintiff has paid all the premiums when due and has given all notices and furnished all proof required by the policy and in all respects complied with the requirements and requests of the defendant; that plaintiff did, on January 1, 1936, within ninety days before furnishing proof and while said policy was in full force and effect, become totally and permanently disabled by reason of loss of hearing, which continued from said date and still continues and is reasonably certain to continue during the remainder of plaintiff's life; that therefore, defendant is indebted to her in the sum of $50 per month from July 18, 1936, and so long as such disability continues; that plaintiff did, on or about July 18, 1936, furnish due proof of such total and permanent disability and demanded payment of the $30 per month, which was refused by defendant; that by the terms of the policy defendant further agreed upon receipt of such proof of total and permanent disability to waive payment of each premium as it thereafter became due during such disability; that by reason of defendant's refusal to recognize plaintiff's claim for total disability and refusal to waive the premiums due on said policy plaintiff did, in August, 1936, pay under protest a premium of $185.73 for the purpose of preventing defendant from declaring a lapse of the policy; that therefore she asks judgment for $30 per month beginning July 18, 1936, together with the amount of said premium paid under protest and any sums she may hereafter pay as premiums during such total and permanent disability, together with interest and costs; that defendant has vexatiously refused to pay the amount due under the policy or any portion thereof, wherefore, plaintiff asks for ten per cent damages in addition and also for $250 as attorneys' fees.

Defendant's answer consists of an admission of the issuance of the policy and a denial of all the other allegations of the petition and an allegation that if plaintiff is totally and permanently disabled within the meaning of the policy then such disability is due to a cause which existed at and prior to the application for and the issuance of the policy.

The reply is a general denial.

On a review of all the testimony in regard to plaintiff's loss of hearing, we think there is ample evidence to support the contention that her hearing was practically nil. She had learned lip-reading, but that was uncertain, and impracticable. While she had used devices to aid her in hearing, yet under the testimony of her own physician, Dr. Frederick Bardenheier, it appears that about January 1, 1936, she practically had no hearing.

Using the witness' own words:

"At that time there was practically no vestige of hearing left. In other words, she could not hear the ordinary conversation nor would tests of various kinds show any hearing left in the nerve."

"Q. What tests did you use? * * * A. Both the conversation, voice and tuning forks.

"Q. State whether or not you consider that condition permanent. A. Yes; it is permanent; the nerve is destroyed.

"Q. The hearing nerve? A. The hearing nerve is destroyed.

"Q. Can that be restored? A. Absolutely not.

"Q. Then what would you say in regard to her condition on January 1, 1936, as to whether she is totally and permanently deaf? A. Yes; absolutely totally and permanently deaf. * * *

"Q. Is there any instrument or device that will enable her to hear ordinary conversation? A. None; there is not any hearing left, so that any hearing aid would not be of any value."

In plaintiff's signed application for insurance in 1925 appears the following:

"Q. Have you any impairment of hearing? A. Yes, for the past ten or twelve years. Onset gradual."

On the back of the application appears a statement signed by Dr. M. Bauman, medical examiner for the company, which is as follows: "Applicant uses Audiphone. Unable to hear watch tick at any distance, no bone conduction. Is an expert lip reader. No discharge noticed."

The disability benefit of the policy provided as follows:

"Disability shall be considered total when there is any impairment of mind or body which continuously renders it impossible for the insured to follow a gainful occupation.

"Permanent Disability. Total disability shall, during its continuance, be presumed to be permanent (a) if such disability is the result of conditions which render it reasonably certain that such disability will continue during the remaining lifetime of the insured; or (b) if such disability has existed continuously for 90 days.

"When Benefits Become Effective. If before attaining the age of 60 years, and before the end of the endowment period and while no premium on this policy is in default, the insured shall furnish to the company due proof that he is totally and permanently disabled, as defined above, the company will grant the following benefits during the remaining lifetime of the insured so long as such disability continues:

"Benefits. (a) Income. The company will pay a monthly income to the insured, during the continuance of such disability, of the amount stated in the first page hereof ($10 per $1000 face amount of policy), beginning upon receipt of due proof of such disability.

"(b) Waiver of Premium. The company will also, after receipt of such due proof, waive payment of each premium as it thereafter becomes due during such disability."

The premium rate which plaintiff was required to pay for her insurance was higher than the normal rate because of the...

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