Laupheimer v. Massachusetts Mut. Life Ins. Co.

• Decision Date: 17 February 1930
• Parties: LAWRENCE L. LAUPHEIMER, RESPONDENT, v. MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, APPELLANT
• Court: Kansas Court of Appeals

24 S.W.2d 1058

224 Mo.App. 1018

LAWRENCE L. LAUPHEIMER, RESPONDENT, v. MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

February 17, 1930

Appeal from the Circuit Court of Pettis County.--Hon. Dimmitt Hoffman, Judge.

AFFIRMED.

Judgment affirmed.

Barnett & Hayes for respondent.

Montgomery & Rucker for appellant.

ARNOLD J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.

This suit involves the proper construction of the total disability clause in a policy of life insurance. The facts of record are that defendant is a corporation, organized and existing under the laws of the State of Massachusetts and authorized to transact business in the State of Missouri in the selling and issuing of life insurance policies. Plaintiff is a resident of the city of Sedalia, Pettis county, Missouri.

In consideration of an annual premium of $ 327.80, defendant issued to plaintiff its policy of life insurance numbered 486740, under which plaintiff's life was insured for $ 10,000, so long as the annual premiums thereafter were paid. In addition to the usual standard provisions of life insurance, the policy insuring the life of plaintiff contained assurances of certain benefits to plaintiff during his lifetime, as follows:

"If the insured, after the payment of premiums for the first policy year, and before default in the payment of any subsequent year's premium, and before attaining the age of sixty-five years, shall furnish due proof to the company at its home office that he has become wholly and permanently disabled so that he is and will be permanently, continuously, and wholly prevented thereby from performing any work, or engaging in any occupation, for compensation or profit, and that such disability has existed continuously for not less than sixty days, the company will

"(1) waive the payment of all premiums becoming due under this policy after the expiration of the then current policy year; and

"(2) pay, six months after receipt of proof of such disability, to the insured if then living and such disability shall continue, one per cent of the face of the policy, exclusive of any paid-up additions, and a like amount each month thereafter during the continuance of said total disability of the insured prior to the maturity of the policy."

(The clause in Italics was deleted by defendant before the execution of the policy by drawing a line through these words.) Following the language above quoted, there was a provision that notwithstanding the proof of disability may have been accepted by the company as satisfactory, the insurer could at any time demand proof of the continuance of such disability, and if insured failed to furnish such proof, premiums thereafter falling due, must be paid and annuity payments cease. The last clause is followed by one providing that the loss of the sight of both eyes and certain other specified injuries should be considered as a total and permanent disability. It appears an additional premium of $ 29.20 was required by the insurer which, however, was included in the total premium charged for the policy.

When the policy was issued the assured was thirty-nine years of age and was engaged, and for a number of years had been engaged as a dealer in hides and wool at Sedalia, Missouri, being senior member of the firm of Laupheimer & Hirsch. Testimony in behalf of plaintiff shows that about January 1, 1927, the insured suffered a nervous breakdown; that his condition grew worse, and in the early part of February of that year, it became necessary for him to dispose of his interest in said partnership and retire from the business; that he ceased to attend to business about February 15, 1927, though the contract of sale of his business was not executed until March 12, 1927.

On sustaining the nervous breakdown, insured consulted a Dr. Dyer of Sedalia and from and after February 15, 1927, insured was wholly disabled from transacting any useful business and thereafter was under the care of various doctors. The testimony shows Dr. Dyer advised plaintiff to leave Sedalia in the hope of benefiting his health. Dr. Dyer diagnosed the case as a mania, a depressive form of mental disturbance bordering on insanity. In April, 1927, plaintiff went to Dallas, Texas where he was under the care of a physician and in a hospital for sixteen days; that about April 24th he left this hospital and a few days later, in care of a nurse, he went to Los Angeles, California, and placed himself in the care of a physician for about five weeks. On about June 10th of that year, plaintiff returned to Sedalia and again was under the care of Dr. Dyer who had him confined in a hospital for two weeks. Then in August of the same year, plaintiff went to Denver, Colorado, where he remained for seven weeks under the care of a physician and then returned to Sedalia and was again under the care of Dr. Dyer.

Testifying for plaintiff, Dr. Dyer said plaintiff's mind became seriously affected about the middle of February, 1927, due to worry over business reverses; that, as part of his treatment he advised plaintiff to go away from Sedalia; that plaintiff's condition was such that he did not know what he was doing, and that he attempted suicide on two or three occasions and the doctor was compelled to place him in a hospital in charge of a nurse; that this condition existed from the middle of February, 1927, until in March, 1928; that after witness and two other physicians had a consultation on the case, he told plaintiff they could do no more for him and that he should go to a sanitarium and stay until he got well; that he thereupon discharged plaintiff as a patient, for the reason given. Dr. Dyer further testified that as a part of his treatment of plaintiff he advised him to go into business of some sort; that he had to be gotten into business or go to an asylum; that this was a part of his treatment; that it was necessary to give plaintiff nerve sedatives to relieve his pain and induce rest.

It is in evidence that about November 19, 1927, plaintiff, on advice of his physicians, purchased a small grocery store in Sedalia and continued as owner thereof until March, 1928; negotiations for the purchase of the store were carried on by one Sam Milton, and management and control of the store were entrusted to one Landon Welch; that during the entire time plaintiff owned the grocery store, he would go there about three days in the week and remain from thirty minutes to two hours on these visits; that plaintiff transacted none of the business connected with the store except to sign checks for bills approved by Welch; occasionally he would attempt to take an order over the telephone, or try to wait on a customer, but would be unable to complete such tasks; that plaintiff sold the store, the details of the deal being conducted by Welch. Between March 1, 1928, and June 1st of the same year, plaintiff remained in the same mental condition, and during that period, did not attempt to engage in any business.

After June 1, 1928, under his physician's orders, plaintiff attempted to sell stocks and bonds for a period of sixty days, for three or four hours a day; that during this period plaintiff's mental condition was not improved. From August 1, 1928, to October 8th of the same year, plaintiff did not attempt to engage in any business, but about the middle of October, 1928, his condition was such as to enable him to attend to some substantial matters of business; but at the time of the trial the evidence shows plaintiff had not fully recovered, he did not claim to have been totally disabled after the middle of October, 1928.

The testimony further shows that at some time during the period for which plaintiff claims total disability, he went to Indianapolis, Indiana, to find employment or suitable business in which he might engage; that he became so ill there that he had to be sent home.

On September 8, 1928, plaintiff notified defendant by letter that he was totally disabled from a nervous breakdown, and requested defendant to advise him of the proper action to take to recover under his policy. In this letter plaintiff stated he was disabled from February, 1926, until November, 1927. Plaintiff testified that the dates mentioned in said letter were put down by mistake and that he afterwards wrote defendant that a mistake had been made and the dates were February, 1927, to November, 1928, being the period of his total disability. It appears plaintiff had policies with other companies and in notifying them the same mistake was made and afterwards similarly corrected.

In answer to plaintiff's letter of September 8th, defendant wrote plaintiff on September 21, 1928, denying liability on the sole ground that his policy did not cover the liability claimed; that his disability was temporary; and the fact that he had recovered sufficiently to resume work relieved the company of liability, and payment was refused. There is no evidence tending to show that payment was refused because plaintiff had not furnished proof of loss; neither did defendant attempt to show plaintiff was not continuously incapacitated during the entire period for...