Heald v. Aetna Life Ins. Co.

• Decision Date: 21 April 1937
• Docket Number: No. 34830.,34830.
• Citation: 104 S.W.2d 379
• Parties: JAMES E. HEALD v. THE AETNA LIFE INSURANCE COMPANY OF HARTFORD, CONNECTICUT, Appellant.
• Court: Missouri Supreme Court

104 S.W.2d 379

JAMES E. HEALD v. THE AETNA LIFE INSURANCE COMPANY OF HARTFORD, CONNECTICUT, Appellant.

No. 34830.

Supreme Court of Missouri.

Division One, April 21, 1937.

Appeal from Carroll Circuit Court. — Hon. Ralph Hughes, Judge.

AFFIRMED.

S.J. & G.C. Jones and Madden, Freeman & Madden for appellant.

(1) The court erred in refusing appellant's demurrer to the evidence for the reason that the evidence failed to disclose that respondent's accidental injury wholly and continuously disabled him from date of accident, and prevented him from performing any and every substantial duty pertaining to his occupation. State ex rel. v. Cox, 14 S.W. (2d) 603; Wendorff v. Life Ins. Co., 1 S.W. (2d) 99; State ex rel. v. Trimble, 267 S.W. 987; Katz v. Union Cen. Life Ins. Co., 44 S.W. (2d) 250; Bellows v. Travelers, 203 S.W. 978; Foglesong v. Modern Brotherhood, 121 Mo. App. 548, 97 S.W. 249; James v. Casualty Co., 113 Mo. App. 628; 7 Couch on Insurance, sec. 1670, p. 5773; Guaranty Co. v. McCarthy, 50 Fed. (2d) 5; Columbia Cas. Co. v. McHargue, 54 S.W. (2d) 617; Fidelity Co. v. Hardeman, 22 S.W. (2d) 1112; Federal Life v. Hurst, 160 S.W. 533; Commonwealth Cas. v. Bryant, 240 S.W. 893; Fidelity Co. v. Getzendanner, 56 S.W. 326; Aetna Life v. McCullagh, 229 S.W. 1033; Aetna Life v. Spencer, 32 S.W. (2d) 310; Williams v. Railroad Co., 257 Mo. 112; Stauffer v. Railroad Co., 243 Mo. 316; Smith v. Supreme Lodge, 61 Pac. 416; Peterson v. Great Northern Life, 229 N.W. 427; Bylow v. Casualty Co., 47 Atl. 1066; McKinney v. Bankers Accident, 75 N.W. 670; Mutual Accident v. Millard, 43 Ill. App. 148; Metropolitan Life v. Blue, 133 So. 707; Supreme Tent v. King, 79 Ill. App. 145; Raburn v. Pennsylvania, 54 S.E. 283; Carroll v. Paper Co., 122 So. 131; Harbour Co. v. Industrial Comm., 296 Pac. 456; In re Lacione, 116 N.E. 485. (2) The court erred in giving at the request of respondent instructions 1 and 2. Saveland v. Fidelity, 30 N.W. 237; Lyon v. Assurance Co., 46 Iowa, 631. (3) The court erred in refusing instructions E, F, H, I, J, K, L, N and O, and each of them.

Franken & Timmons and McAllister, Humphrey, Pew & Broaddus for respondent.

In view of appellant's assertion, so often stated in its brief, that plaintiff is not entitled to recover if he could perform any one substantial duty, respondent desires to call this court's attention to the language used in the case of Young v. Travelers Ins. Co., 80 Me. 244. Take the first case, that of Columbia Cas. Co. v. McHargue, 54 S.W. (2d) 617, which is a Kentucky decision. It is directly opposed to appellant's assertion. Take the case of Aetna Life Ins. Co. v. Spencer, 32 S.W. (2d) 310. It is an Arkansas case and is also directly opposed to appellant's contention. The true rule is that "What amounts to a total disability is a relative matter, and depends largely upon the circumstances of each case, and upon the occupation and employment in which the person insured is engaged." 1 C.J., pp. 462, 463; McMahon v. Supreme Council, 54 Mo. App. 472; Brotherhood of Locomotive Firemen v. Aday, 97 Ark. 425, 134 S.W. 930.

HAYS, J

This case recently came to the writer by reassignment. It is an action on a policy of accident insurance. In the trial by jury plaintiff had a verdict and judgment for $525. The defendant appealed to the Kansas City Court of Appeals. That court certified its decision to this court pursuant to Article VI. Section 6. Amendment of 1884 of the Constitution of the State, on the ground that such decision was in conflict with decisions of the St. Louis and Springfield Courts of Appeals. In this situation the cause is here for rehearing and determination in like manner as in case of jurisdiction obtained by ordinary appellate process. However, we are at liberty to avail ourselves of such portions or all of the certified opinion as we may choose.

We quote the facts as stated therein, as follows:

"The facts show that the plaintiff was injured on March 22, 1934, while employed in a meat market, owned by one Jack Street and his partner, located in North Kansas City. While splitting a large bone on the meat block with a meat cleaver the cleaver slipped and cut off plaintiff's thumb on his right hand (near the second joint from the tip and had to be disarticulated at that joint). At the time of the injury plaintiff held an accident insurance policy issued by the defendant for the payment of a weekly indemnity in the event insured received accidental injuries which should totally disable him, that is `wholly and continuously disable insured from date of accident and prevent him from performing any and every duty pertaining to his occupation.' The policy also provided for the payment of one-half of that amount for partial disability, described as injuries that should `continuously disable the insured from date of accident and prevent him from performing any one or more important daily duties pertaining to his occupation.' It also provided that insured could elect to receive total disability benefits `in the event of the loss of both hands, both feet or the sight of both eyes,' in lieu of the sums specified for such specific injuries.

"The policy was issued in the year 1925 while plaintiff was operating, as owner, a meat market in Liberty. Insured was described in the policy as owner of a meat market and it stated that his occupation was that of "manager, counter duties, only, not slaughtering or delivering.'

"After his injury plaintiff received indemnity for total disability for eight weeks and four days. The stump of his thumb completely healed over in five weeks and in August, 1934, he returned to the Street meat market in an effort to resume his work. For the first two days he attempted to do everything he had done before, without success. In making fine cuts of meat he was required to grip the meat with the injured hand (he was left-handed). After thirty minutes his hand would cramp, `quite an acute pain' on account of tenderness in the end of the stump of his thumb and he was required to suspend work. He would rub his hand and massage it or put it under a hot water faucet for five minutes or more, which would relax the cramping condition. He would then work for perhaps half an hour when it would be necessary to repeat the treatment. At night, after coming home from work, he was unable to rest. The pain at night was much worse than when he had not tried to work during the daytime. His disability to perform his work was `on account of the sensitive condition of the stump of that thumb and the lack of the thumb.' In all, he was at the shop approximately eight days and did not do a full day's work. `I would have to quit in the evening.'

"Plaintiff testified that the things he did after he returned to work were of a minor nature. He could not trim hamburger, but could grind it. He could grind sausage and keep the case wiped up. He could handle (cut) `coarse boiling meat or something like that.'

"The evidence shows that in cutting meat it is necessary for the butcher to hold it: `You have to clamp it to hold it solid or steady to cut it, and if it isn't steady, you can't cut it smooth, the same thinness all the way through. Q. What part of your hand do you use in holding the meat? A. You use a clamp to hold the small pieces or any large pieces, either. You have got to clamp them down. Q. With what? A. Well, with your thumb.'

"Jack Street, one of the proprietors of the meat market, testified that when plaintiff returned to the shop the latter part of August the latter made sausage and hamburger and cleaned up around the place and attempted to cut meat; that the cuts of meats that plaintiff undertook to make were `very ragged;' that the witness had cuts returned by his customers `due to the unevenness in the cutting.' The witness further testified that he superintended the meat department.

"Plaintiff testified that his duties at the meat market were confined to the meat department `cutting steaks, cutting and rolling roasts, cutting chops and waiting on customers'; that he had `general supervision of the (meat) counter, wait on trade, handling customers. Of course, Mr. Street was always present to take care of anything that I couldn't handle. Q. You also did the buying for the meat department? A. Yes. The major part of the meat the last two or three years;' that the meat was bought from various packing houses; that he usually bought the meat from the packing-house salesmen who come there; that the buying of meat was a part of his counter duties; that after the loss of his thumb, `I went there and did as much as I could, the things required of me, but I had a helper all the time where I formerly had a helper only maybe two hours a day. Q. In other words, with your thumb off, you couldn't do all the things you could before? A. By no means. I couldn't do any of them as well and I couldn't do half as many as I could before. Q. Is that right? A. That's right;' that he kept books `in a way.' `Q. You could take care of the trade except as to certain of these cuts of meat, couldn't you? A. No, I'll say that I wasn't able to take care of the trade. Q. Well, can you tell me anything you couldn't do for the trade except your inability, you say, to make certain of these cuts of meat? A. Well, that's the business. That is really the thing you do when you work and make those cuts. Q. Answer my question. Could you take care of the trade except insofar as you couldn't make these certain cuts of meat you described? A. No, sir. Q. You could wait upon the customer? A. I could wait upon one where I could formerly wait on five in the same time. Q. Oh, you could handle the trade, but not so well, is that right? A. Handle a limited amount of it.'

"He further testified that he had tried to follow his trade but he knew that he could not do it; that he was still able to buy meat and set the price for it to be sold at retail. `Q. And as to your superintending duties, directing the activities...