Jabin v. National Acc. Soc. of New York

• Decision Date: 04 May 1931
• Parties: KASIL JABIN, RESPONDENT, v. NATIONAL ACCIDENT SOCIETY OF NEW YORK, APPELLANT
• Court: Kansas Court of Appeals

41 S.W.2d 874

226 Mo.App. 342

KASIL JABIN, RESPONDENT, v. NATIONAL ACCIDENT SOCIETY OF NEW YORK, APPELLANT

Court of Appeals of Missouri, Kansas City

May 4, 1931

Appeal from the Circuit Court of Jackson County.--Hon. Ralph S Latshaw, Judge.

AFFIRMED.

Judgment affirmed.

Philip L. Levi for respondent.

W. H H. Piatt for appellant; David I. White of counsel.

BLAND J. Arnold, J., concurs; Trimble, P. J., absent.

OPINION

BLAND, J.

--This is an action in two counts, arising in a justice court, upon the health provisions of an accident and health policy of insurance. The case was tried before the court without the aid of a jury. There was a judgment in favor of the plaintiff in the sum of $ 446 and defendant has appealed. No declaration of law was asked or given nor was any finding of facts requested. Under the circumstances, if there is any substantial evidence to support the judgment it must be affirmed. [Kansas City v. Boyer, 202 S.W. 1086.]

The policy was issued on July 18, 1928. It provided for a sick indemnity at the rate of $ 200 per month should the insured be disabled and continuously confined within the house, and therein regularly and personally visited by a legally qualified physician at least once each seven days, by reason of illness that wholly and continuously disabled and prevented him from performing any and every duty pertaining to any business or occupation, and that was contracted and began after the policy had been maintained in continuous force for thirty days from its date. The policy provided for the payment of a monthly premium of $ 9.20, and that:

"This policy will expire on the 18th day of August, 1928, at twelve o'clock noon, Eastern Standard time, but may be consecutively renewed from term to term, subject to all its conditions, by payment of the premium in addition."

It also provided that the insurance should cover only disability from sickness contracted after thirty days from its date and, then, only if the renewal premium had been paid on or prior to said last mentioned date and subsequent terminal dates, or, if the policy was permitted to lapse it should only cover sickness which commenced ten days after the policy had been reinstated by the payment of the premium.

The first count of the petition alleges that on or about the 18th day of July, 1928, defendant issued its policy of insurance to plaintiff whereby "in consideration of the monthly premium of nine and 20/100 dollars ($ 9.20), it promised to pay plaintiff a monthly illness indemnity of two hundred dollars ($ 200) against disability and sickness for such period of time as the insured shall be under the care of a legally qualified physician, and such sickness as is contracted and begins after this policy has been maintained in continuous force for thirty days from its date." The petition then quotes from the policy relative to the agreement to pay sick benefits after the policy had been in force thirty days. It then alleges:

"Plaintiff further states that on or about September 18, 1928, and while said policy was in full force and effect, plaintiff was disabled and continuously confined within the house. . . . That said illness was contracted and began after this policy had been maintained in continuous force for thirty days from its date; and that said illness continued and confined plaintiff to his house unable to perform any duties until October 20, 1928; that plaintiff has complied with all provisions and requirements in said policy on his part to be performed; that as a result of said illness, there is due him the sum of two hundred thirteen and 33/100 dollars ($ 213.33)."

The petition then alleges that defendant has refused to pay said sum although it had been demanded and that the refusal to pay was vexatious and without reasonable cause and prays judgment in the sum of $ 213.33 on the policy, $ 21.33 for vexatious refusal to pay and $ 50 attorney's fees, or a total of $ 284.66.

The second count of the petition contains allegations similar to those in the first count, except it asks for sick indemnity for a period commencing November 27, 1928, and ending on December 22, 1928, and prays for $ 166.65 indemnity, $ 16.66 for vexatious refusal to pay and $ 30 attorney's fees, or a total sum of $ 213.31. The petition then ends up with a prayer for a judgment in the total sum of $ 497.97. The policy was attached as an exhibit to the petition filed in the justice court.

The facts show that plaintiff was ill within the terms of the policy during the times alleged in the petition; that he gave notice of his illness to defendant relative to both periods of sickness and made proofs of loss; that defendant refused to pay the claim founded upon the first period of disability on the ground that plaintiff failed to give written notice thereof within ten days after the beginning thereof, as provided by the policy, and that his illness did not begin within thirty days after its date. Defendant gave no reason for its failure to pay for the second period of disability.

It is insisted that the petition fails to state a cause of action for the reason that it alleges that the first disability started on September 18th, but does not allege that the policy was in force at that time by virtue of the payment of the monthly premiums, or that it had lapsed and had been reinstated ten days prior to the commencement of the illness or the disability. No doubt defendant intends this claim to be leveled at both counts for the allegations contained in both are substantially the same. There was no attack made upon the petition until the cause reached this court. It is admitted that the possession of the policy is presumptive evidence of the payment of the first premium. The petition alleges the amount of the monthly premium, that the policy was in full force and effect on the date of the commencement of the illness and that plaintiff complied with all of the provisions and requirements of the policy. For a petition in a justice court, if not in the circuit court, we think it sufficiently alleges a cause of action against defendant. [Terti v. American Ins. Co., 76 Mo.App. 42; Steinbruegge v. Prudential Ins. Co., 190 S.W. 1018; Goudie v. National Surety Co., 288 S.W. 369; Makos v. Bankers' Accident Ins. Co., 234 S.W. 369; Tebeau v. Ridge, 261 Mo. 547, 170 S.W. 871; Kern v. United Rys. Co. of St. L., 259 S.W. 821; Mayhew v. Mutual Life of Ill., 217 Mo.App. 429, 266 S.W. 1001; Winn v. Ins. Co., 83 Mo.App. 123, 1261; Jones v. Underwriters, 78 Mo.App. 296.] [See, also, Cunningham v. Holzmark, et al., No. 17058, decided by this court but not yet reported; section 807, R. S. 1929; Pomeroy v. Fullerton, 113 Mo. 440, 21 S.W. 19.] This is true, although a consideration or payment of additional or renewal premiums is required by the policy, whether or not the general rule applies, that where it is shown that the policy is in the possession of the insured it will be presumed to be in full force and effect. [See Lafferty v. Casualty Co., 287 Mo. 555, 229 S.W. 750.] We have examined the cases cited by defendant and find that they do not sustain its contention. The case of Swift v. Ins. Co., 216 S.W. 935, does not support defendant. That case, if anything, is authority in favor of plaintiff as it suggests that if the insurance is in writing, as here, a consideration will be presumed. It is unnecessary for us to say whether that case is authority for a holding in the case at bar that the petition alleges that any premium other than the first was paid. The fact that the policy provides that it may be continued in force merely by the payment of the renewal premium, without the making of anything in writing, at the time of the payment, concerning the renewal, does not, of course, make it an oral contract of insurance.

It is claimed that the petition fails to state a cause of action for the reason that it does not allege that notice of disability was given and proofs furnished, as provided in the policy. Where, as in this state, it is provided by statute that a compliance with a condition precedent may be pleaded generally, an allegation of performance made in accordance with the statute is sufficient to allege that notice and proofs of loss were duly given. [Sec. 807, R. S. 1929; Farmers Bank v. Assurance Co., 106 Mo.App. 114, 126, 127, 80 S.W. 299; McGannon v. Millers' National Ins. Co., 171 Mo. 143, 154.] See, also, Colley's Briefs on Insurance, page 5820 (2 Ed.), and Missouri cases cited therein.

However, defendant claims that these authorities have no application to the case at bar for the reason that they involve executed contracts of insurance and not an executory contract, as defendant claims this policy of insurance to be because it is a renewal policy. In this connection defendant states: "such an executed policy contract is entirely different from an executory contract for illness indemnity, that manifestly the insurer must be in a position to investigate immediately upon notice." What defendant evidently means is that under the peculiar provisions of the policy in suit it must be put in a position to investigate whether the premium had been paid when the disability began, whether the contract had been in force thirty days and, if there had been a default in the payment of the premium, whether the disability had begun ten days after the date of the payment of the premium for the reinstatement of the contract. This argument might have some weight relative to the matter of the importance of giving timely notice of the disability, but we fail to see how it has any bearing on the question of pleading.

It is insisted that there is no proof that the premiums were paid that were due on September 18th and November 18th. It is admitted that plaintiff...