Hughes v. Prudential Ins. Co.
| Decision Date | 03 April 1944 |
| Docket Number | : 20317 |
| Citation | 179 S.W.2d 630 |
| Parties | Hunt C. Hughes, Respondent, v. Prudential Insurance Company, a Corporation, Appellant, |
| Court | Missouri Court of Appeals |
APPEAL FROM HENRY CIRCUIT COURT.
REVERSED & REMANDED.
Ewing C. Bland
This is a suit on a disability provision of a life insurance policy issued to the plaintiff, on January 26, 1927. There was a verdict and judgment in favor of plaintiff in the sum of $ l643.25, which includes an attorney's fee of $ 1000 for vexatious refusal to pay. Defendant has appealed.
The policy is in the sum of $ 5000 and provides, that if plaintiff "shall become totally and permanently disabled, either physically or mentally, from any cause whatsoever, to such an extent that he (or she) is rendered wholly, continuously and permanently unable to engage in any occupation or perform any work for any kind of compensation of financial value during the remainder of his (or her) lifetime", and if the disability shall occur before the age of 60 while the policy is in force, defendant will pay to the plaintiff the sum of $ 10 per month for each $ 1000 of the stated amount of insurance, or, $ 50 per month, and waive the payment of premiums accruing during such total and permanent disability.
On May 9, 1940, plaintiff filed, with the defendant, an application dated April 29, 1940, for permanent total disability payments, in which he stated that his health was "first affected in the present disability" on September 10 1939; that he had been wholly incapable of engaging in any gainful work and became continuously disabled from October l0, 1939. This application was accompanied by a statement made by his physician, Dr. Danglade, which was excluded upon the objection of the defendant. Following the filing of this proof plaintiff was examined, at the request of the defendant, by Dr. Eugene C. Black, who made a written report of his findings, dated May 18, 1940. This report, over the objection of the defendant, was admitted in evidence, as plaintiff's Exhibit 7. On June 18, 1940, defendant wrote plaintiff approving his claim for disability, and stating that income installments would be payable, beginning April 26, 1940, and that the premiums would be waived beginning with the one due on January 26, 1941.
Payments were made to and including that due on December 26, 1940, when defendant discontinued them. Defendant requested of plaintiff that he submit to a complete examination by Dr. Eugene C. Black. The latter examined plaintiff on October 20, 1941, and again in Research Hospital, in Kansas City, where plaintiff remained for 3 days. At the hospital an examination was made by Dr. Black and, also, by Dr. E. T. Gibson, a neurologist, called in by Dr. Black. Following this examination, defendant wrote plaintiff, on January 9, 1942, refusing to continue the payments. Plaintiff thereafter, paid the annual premium of $ 243.25 due January 26, 1942. No subsequent claim or proof of disability was made until the filing of this suit, on May 2nd, 1942.
The facts further show that plaintiff is 49 years of age; that some 27 or 28 years before the trial he moved from Texas to Kansas City, where he resided until some three years before the trial, when he moved to Osceola; that while in Texas he ran an elevator for a while, later he sold shoes from samples, principally to men in the oil fields. He later drove a car for the Allison Rickey Land Company, which sold land in Texas and Florida, He drove, and occasionally interviewed, prospective purchasers for this company. He also drove a taxicab for a while.
On coming to Missouri he was first employed by Mr. Allison of the Allison-Rickey Land Company, and then by the National Farms. Estate, which was engaged in selling Florida land, in soliciting people to go to Florida and "help sell my own prospects", but he did not close the deals. He was with Mr. Allison in Kansas City for not more than 30 days. Then, apparently, Mr. Allison went back to Texas and plaintiff was employed for a while by the National Farms Estate in Kansas City and in Sioux Falls, South Dakota. After this he bought and sold stocks and bonds for his own account. He sold automobile accessories for a while at County Fairs. He drove a taxicab for a considerable period of time. During the period for which he claims permanent and total disability he worked occasionally in a night club assisting in the operations of the "crap table, a dice game". He owned a home in Kansas City, which he rented and, jointly with one Mr. McKinney, he owned a filling station at Eldorado Springs, which they rented to another. Plaintiff testified that he never performed any actual manual labor, except while he was in the first World War.
Plaintiff further testified that in 1933 he was sick end did not know what was the matter with him; that he consulted Dr. Bohan and Dr. Danglade, in Kansas City; that they advised him to enter St. Luke's Hospital, which he did. They gave him malaria fever treatment, blood tests and a test of his spinal fluid. He was in the hospital for over a month. Following his release from the hospital he did no work for four or five months. He lost some 40 pounds and never did get to feeling completely well, but got out and tried to work, and did work some. After the time of his first visit to St. Luke's Hospital he was treated, on occasions, by Drs. Bohan and Danglade. They sent him back to the hospital.
He testified that he had also been under treatment by Dr. Boughnou who, also, sent him to St. Luke's Hospital; that he was in the hospital on three or four occasions. He, also, was a patient at the Veterans Hospital in Excelsior Springs on two occasions. In reference to his confinement in the Veterans Hospital at Excelsior Springs, he testified that, after going to Osceola, he
His treatment by Dr. Boughnou was before he was examined by Dr. Black. At the time of the trial he was under the care of Dr. Douglas of Osceola. Dr. Douglas had recently given him "a treatment Dr. Bohan told me to take every year, a course of treatment, ten weeks' treatment."
Plaintiff further testified that he was 6 feet tall; that he had not weighed recently; that he thought he weighed about 175 pounds; that he had weighed anywhere from 175 to 190 pounds. He further testified that his flesh and weight were about the same as they had been for sometime. He testified that he moved from Kansas City to Osceola in 1938 or 1939 and, for the most part, he had lived in a tourist cabin there. In 1939 he went to Illinois, and for a while he bought and sold oil leases and royalties. He was last treated by Drs. Bohan and Danglade in 1940. He took no further treatments from them because they told him "they just couldn't do me any good".
He further testified that since the year 1939 he had been unable to perform any physical task, except to work around the yard and take a little exercise; that since such time he suffers continuously with an intense knot in his stomach; that when he eats his bowels swell up; that he has trouble in passing his food, and he is required to take an enema every day; that he takes oil continuously, also medicine which Dr. Boughnou prescribed for him; that he had not had a natural bowel movement for years; that he has pain in the back of his head that his eyes bother him and give out on him; that on some days he feels pretty good; that he is not confined to his bed; that he can drive around in his car; that he gets out and tries to hunt; that he has a continuous pain at the base of his head, which is not as bad at times as it is at others; that he has difficulty in getting his rest and sleep; that he is required to get up to urinate 8 or 10 times each night; that he experiences nervousness at night; that he cannot eat anything when he has done the least bit of exercise; that he wears glasses; that his eyes were examined by Dr. Hagenah, an optometrist, who prescribed glasses for him; that he cannot read for any length of time because his eyes hurt him and give out; that he has not had any relief from these conditions since 1939; that there are times when he cannot get out at all; that he lays around the house quite a bit of the time; that he has had his teeth extracted; that he has not been able to keep his mind on anything or work at anything; that he is in more or less of a trance; that he does not feel like going out, or being with anybody; that he is by himself most of the time; that he does nothing at all but read; that he cannot write to any extent or answer letters; that he cannot carry on his business; that he has not been able to go up to rent any of his places; that he is unable to hold long conversations, in fact, holding such conversations makes him nervous; that he does not know how to explain the way he feels--"I feel like I am in a daze, I know I aint crazy"; that he attended dances on two occasions but did not dance because "I couldn't do it"; that he cannot walk for any distance "without giving out"; that he goes hunting and ...
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