Kane v. Metropolitan Life Ins. Co.

• Decision Date: 18 June 1934
• Docket Number: No. 5355.,5355.
• Parties: THOMAS E. KANE, RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

73 S.W.2d 826

THOMAS E. KANE, RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT.

No. 5355.

Springfield Court of Appeals. Missouri.

June 18, 1934.

Rehearing denied July 30, 1934.

Appeal from Circuit Court of New Madrid County. — Hon. John E. Duncan, Judge.

AFFIRMED.

Leroy A. Lincoln and Oliver & Oliver for appellant.

Finch & Finch and Rush H. Limbaugh for respondent.

SMITH, J.

This is a suit to recover total and permanent disability benefits under certificates of insurance issued by defendant to plaintiff as an employee of the St. Louis-San Francisco Railway Company under a group policy of insurance. The master policy was issued by the defendant on the employees of the St. Louis-San Francisco Railway Company (hereinafter called Frisco) on August 1, 1923. Plaintiff was then an employee of the Frisco, holding the position of chief train dispatcher at Chaffee, Missouri. On the same day the master policy was issued defendant applied for and was granted $5,000 of insurance. This was issued by certificate dated August 1, 1923, for $4,000, and an additional certificate increasing such insurance $1,000. On February 1, 1925, the defendant issued a certificate increasing the insurance carried by plaintiff $4,000. This made a total of $9,000 of insurance carried by the plaintiff, the premiums on all of which had been paid and all of which was in force up to December 31, 1930.

The master policy provided for the payment of total and permanent disability benefits to employees carrying insurance under that policy. The chief provisions relative to total and permanent disability were also set out in the original certificate issued to the plaintiff. These provisions are as follows:

"Total and Permanent Disability Benefits.

"Any employee shall be considered as totally and permanently disabled who furnishes due proof, that, as the result of bodily injury suffered or disease contracted while his insurance was in force and prior to his sixtieth birthday, he is permanently, continuously and wholly prevented thereby from performing any work for compensation or profit.

"Upon receipt of due proof of such disability, the Metropolitan Life Insurance Company will pay to such employee, in lieu of the payment at death of the said insurance on the life of such employee, equal monthly installments based on the amount of insurance in force on such employee at the date of receipt of proof of such disability, as shown in the following tables.

                Amound of   No. of Monthly   Amount of Each
                Insurance    Installments     Installment
                $1,000.00         20            $ 51.04
                 2,000.00         40              52.50
                 3,000.00         60              54.00
                 4,000.00         60              72.00
                 5,000.00         60              90.00
                 7,000.00         60             126.00
                 9,000.00         60             162.00
                

"Such installment payments will be made only during the continuance of such disability."

There is no controversy over the pleading in the case. The principal complaint is over the above quoted part of the policy. The plaintiff contends that he was totally and permanently disabled while the policy was in full force and effect before he was sixty years of age.

The case was tried to a jury on May 31, 1933, and a verdict returned in favor of plaintiff for $3196.02. Motions for new and in arrest of judgment were filed and overruled, and the defendant has appealed to this court.

Defendant's position is that this case should be reversed outright for the reason that plaintiff not only failed to prove his case, that he was totally and permanently disabled so as not to be able to do any work for compensation or profit, but affirmatively showed that he was able to engage in work for profit and had continuously done so for two and a half years immediately prior to the trial.

There is not much dispute over the facts in the case. There is no denial of the issuing of the policies sued on. There is no denial in the brief and argument of the amount due the plaintiff, if in fact anything is due under the policy and under the facts. There is no question but that the plaintiff was an employee of the Frisco as a train dispatcher, and that he had held that position with the Frisco for nearly twenty years, and that that had been his work for several years prior to his employment by the Frisco. He had not done any work except as train dispatcher and telegrapher since he was about seventeen years old, and that he was discharged from the service as chief dispatcher by the Frisco on August 30, 1930, because of his deafness. He was totally deaf in one ear, his right ear and having only one-twentieth or five per cent of his capacity for hearing with his left ear. There was some question of his age at the time of his discharge. A clerk or helper in the hospital said that when he reported at the hospital for examination in 1930 that he gave his age at that time at sixty-five years. While he was on the stand he said that when he was discharged he was fifty nine years old, and he produced what purported to be a family record from an old Bible which corroborated his statement as to his age. The jury passed on that point, and no question as to his age is raised before us. There is no question here that proof of loss was not made as provided by the policy.

The first four assignments presented in defendant's brief have to do with the construction of the disability clause of the policy. The defendant contends that the demurrer should have been sustained, because the contract is plain and unambiguous, and that according to the testimony, and especially his own testimony, the plaintiff was actually engaged in another occupation for compensation or profit, and that it was the court's duty to construe the contract sued upon and apply it to the undisputed facts.

The facts upon which defendant bases its contention are, that after the plaintiff was discharged he had ability to and did look around trying to find a position or employment in which he could engage for compensation or profit, and that on December 1, 1930, after he had been taken out of the railroad service in August, he bought a pool hall in Chaffee, Missouri, and paid $800 cash for it. This hall had four tables in it, but only three of them were used. At the front of the room there is a small stand at which cigars, tobacco, candy and chewing gum are sold. The plaintiff stayed around this hall and operated it himself with the the assistance of a boy to clean up the premises and to rack the balls on the tables and to do most of the routine labor about the place. The plaintiff was the managing heard of the business, and to use his own expression was "the boss" of the place. The plaintiff was the only person in charge of the hall from "an hour to an hour and a half during the noon hour and from an hour to an hour and a half during the evening meal hour." This business was continuously operated since December 1, 1930, up to the date of the trial, May 31, 1933. The testimony shows that in the winter months of 1930-1931, the business made a clear profit of from $10 to $12 per day but thereafter the income and profit had decreased until the business was not more than making expenses at the date of trial. The plaintiff said he had hopes that it would be better if general business conditions improved. One witness for defendant sent by defendant to visit the pool room said he had visited the place of business a short time before the trial about the noon hour and that the plaintiff was in charge of the pool room and sold him some tobacco, that he was selling soda, racking the balls and taking money. Some of the doctors who had examined the plaintiff said that while his hearing was so defective as to prevent his following his life work that of train dispatcher, that there were other occupations that he might be able to follow. The plaintiff himself admitted that he stayed around the pool hall and occasionally played a game of pool, and sometimes collected the fee for playing, and that while his hired boy was away for his meals that he looked after the tables and the sales, but most of the time there was nothing to do during those hours, and that he did not rack up the balls a dozen times a week, and that other times the boy ran the pool hall, racked up the balls and took in the money.

Several witnesses testified that the plaintiff was not actively engaged in running the pool hall, but left the care of the tables, the care of the cigar and candy stands, with the collection of the money from the sales and from the pool tables to the boy who was there practically all the time.

The plaintiff's contentions is that while the plaintiff owned the pool hall he was not running it himself and that what he received from the operation of the hall was profit from an investment and was not wages or income for work...