Hurt v. Equitable Life Assur. Soc. of the United States

• Decision Date: 08 November 1932
• Docket Number: No. 21952.,21952.
• Citation: 53 S.W.2d 1101
• Parties: HURT v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.
• Court: Missouri Court of Appeals

53 S.W.2d 1101

HURT v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.

No. 21952.

St. Louis Court of Appeals. Missouri.

November 8, 1932.

Appeal from Circuit Court, St. Francois County; I. W. Threlkeld, Judge.

"Not to be published in State Reports."

Action by Joe E. Hurt against the Equitable Life Assurance Society of the United States, a corporation. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Benj. H. Marbury, of Farmington, for appellant.

W. A. Brookshire, of Farmington, for respondent.

BENNICK, C.

This is an action to recover under the total and permanent disability provision of a policy of group life insurance, issued by appellant, the Equitable Life Assurance Society of the United States, upon the lives of the employees of the National Lead Company, a corporation engaged in the operation of mines in St. Francois county, Mo., and elsewhere. Plaintiff, Joe E. Hurt, claims the benefit of the provision of the policy as an employee of the lead company at the time his alleged total and permanent disability resulted and while the policy was in full force and effect. Judgment went for plaintiff for the sum of $1,800; and defendant, the insurance company, has duly appealed.

The case is presented to us upon the question of whether the court erred in refusing appellant's requested peremptory instruction in the nature of a demurrer to all the evidence. Plaintiff concededly ceased his employment with the lead company on September 17, 1928, and both sides agree that for plaintiff to recover in this action it was necessary for him to have adduced substantial evidence that he was totally and permanently disabled, and that such disability had occurred prior to the termination of his employment. The sufficiency of the evidence upon that feature of the case is therefore the sole matter for our determination, in view of which any reference to the provisions of the policy as a whole, or to the contents of the pleadings, becomes unnecessary.

So much of the total and permanent disability provision of the policy as concerns the case at hand is as follows: "If proof shall be furnished the Society that any employee insured under this policy has, before having attained the age of 60, become wholly disabled by bodily injuries or disease, and will be wholly and presumably permanently prevented thereby for life from pursuing any and all gainful occupation, the Society will pay six months after receipt of such proof, in full settlement of all obligation under this contract pertaining to such employee, the full amount of the insurance on such life. * * *"

It will be observed that the policy itself defines what is meant by "total and permanent disability," namely, that the employee insured thereunder must be "wholly and presumably permanently prevented * * * for life from pursuing any and all gainful occupation."

Bearing in mind the nature of the risk insured against, we turn to the record in the case, and note plaintiff's own testimony that he had begun working for the lead company about May, 1911; that in 1919 he suffered a fracture of the left leg which had failed to heal completely, with the result that ulcers had formed; that in 1926 he received a fall, severely injuring his shoulders, back, and both legs; that after the latter accident he suffered pain all the time; that upon exertion, as when lifting, he had pain in his back, legs, and hips; that he had no sensation in the lower...