Huber v. Western & Southern Life Ins. Co. of Cincinnati, Ohio, 30514

• Court: Missouri Court of Appeals
• Writing for the Court: WOLFE; ANDERSON, J., and O. P. OWEN
• Citation: Huber v. Western & Southern Life Ins. Co. of Cincinnati, Ohio, 341 S.W.2d 297 (Mo. App. 1960)
• Decision Date: 20 December 1960
• Docket Number: No. 30514,30514
• Parties: Edwin HUBER, Sr. (Plaintiff), Respondent, v. WESTERN AND SOUTHERN LIFE INSURANCE COMPANY OF CINCINNATI, OHIO, a Corporation (Defendant), Appellant.

Page 297

341 S.W.2d 297

Edwin HUBER, Sr. (Plaintiff), Respondent, v. WESTERN AND SOUTHERN LIFE INSURANCE COMPANY OF CINCINNATI OHIO, a Corporation (Defendant), Appellant.

No. 30514.

St. Louis Court of Appeals, Missouri.

Dec. 20, 1960.

Motion for Rehearing or to Transfer to Supreme Court

Denied Jan. 13, 1961.

Derrick & Holderle and Tyree C. Derrick, St. Louis, Robert A. McIlrath, Flat River, for appellant.

McClintock & Medley, Charles W. Medley, Flat River, for respondent.

WOLFE, Presiding Judge.

This is an action on a group accident and health insurance policy issued by the Missouri Insurance Company. That company was taken over by the defendant corporation. The trial resulted in a verdict and judgment for the plaintiff, and defendant prosecutes this appeal.

Plaintiff's petition alleges that the plaintiff was an employee of the Missouri Insurance Company. It is alleged that he had a group accident and health certificate under a group accident and health policy with the Missouri Insurance Company. It is alleged that this policy provided that upon payment of the premium of $5 per month, the insurer was obliged to pay the plaintiff $90 per week if the plaintiff, as a result of illness, was wholly and continuously disabled for a period of $26 weeks. It is also alleged that under the policy the defendant was obliged to pay $76.50 per week for 13 weeks after the expiration of the 26 weeks if the disability so long continued.

It is stated that on April 7, 1957, the plaintiff became continuously disabled and that he was paid $90 per week for 26 weeks and $45 per week for 13 weeks thereafter. He alleged that this payment as $292.50 less than he was entitled to under the policy for the disability mentioned. He stated that on July 31, 1957, he sustained a further illness, and he was continuously and wholly disabled by reason of this for the full period of time previously mentioned, and for this he also seeks recovery in an amount equal to that which he maintains he should have been paid under the first claim for disability.

Plaintiff also makes the following allegation:

'* * * that he had been an employee of defendant and its corporate predecessors in the insurance business for more than twenty years prior to his discharge as an employee of defendant in March, 1957, that at the time of his discharge, defendant promised to pay plaintiff One hundred seven dollars and fifty cents ($107.50) per week for two weeks as severance pay; that defendant paid plaintiff one sum of ($107.50) One hundred seven dollars and fifty cents but has ever since failed and refused to pay plaintiff the additional sum of One hundred seven dollars and fifty cents ($107.50) due plaintiff although demand has been made upon defendant on numerous occasions since April 8th, 1957.'

The answer of the defendant admits that its predecessor issued to the plaintiff the insurance certificate; denies that any more than $45 per week was to be paid under the policy for the last 13 weeks of the disability; and admits that plaintiff's employment terminated on the 25th of March, 1957. The defendant further alleged that the insurance contract carried the following provision:

'TERMINATION OF INSURANCE: The insurance hereunder shall terminate automatically when any monthly premium is in arrears for a period of thirty days or when the services of the insured with the company are terminated without regard to the cause. * * *' (Emphasis ours.)

It is alleged that the plaintiff's employment terminated prior to the date of his disability, and that the defendant was not obligated by the terms of the contract to pay the plaintiff any sums whatsoever.

The defendant also counterclaimed, maintaining that the sums it had paid the plaintiff totaling $2,925 were paid by 'mistake and inadvertence', and it seeks to recover from the plaintiff the amounts so paid. The plaintiff's reply to the defendant's counterclaim was simply a denial of the allegations contained in it.

Plaintiff's testimony was to the effect that he had been an employee of the Missouri Insurance Company for twenty-one years. For sixteen years of that time he was employed in Farmington, Missouri, as a manager of the district in the Farmington area. He carried with his employing company a group health certificate issued under a group accident and health policy, and his monthly premium was $5.

The policy provided that if the insured suffered from a totally disabling disease, he would be paid the sum of $90 per week for 26 weeks if the disability so long continued. Section F of the policy provided for an additional payment for a maximum of 13 weeks at the rate of $45 per week.

Huber testified that on January 31, 1957, he suffered a heart attack. He continued to go to the office but he was unable to get out into his territory to full carry on his work. On March 25, 1957, he had a conference with his superiors in St. Louis. He was told that a new manager would take over the Farmington area, and that he, Huber, would be given a debit in St. Louis. Huber stated that he was too ill to work a debit, and that he told his superiors he would accept the benefits of...