Lentz v. New York Life Ins. Co.

• Decision Date: 11 January 1937
• Docket Number: No. 18586.,18586.
• Citation: 100 S.W.2d 588
• Parties: LENTZ v. NEW YORK LIFE INS. CO.
• Court: Missouri Court of Appeals

100 S.W.2d 588

LENTZ v. NEW YORK LIFE INS. CO.

No. 18586.

Kansas City Court of Appeals. Missouri.

January 11, 1937.

Appeal from Circuit Court, Chariton County; Paul Van Osdol, Judge.

"Not to be published in State Reports."

Action by Clara F. Lentz against the New York Life Insurance Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

James A. Collet, of Salisbury, and John Campbell, of Kirksville, for appellant.

Harold E. L. Mason, of Marceline, and Lon R. Owen, of Brookfield, for respondent.

SPERRY, Commissioner.

Plaintiff sued on a policy of life insurance which provided for payment of $10 per month benefits in the event of total and permanent disability while the policy was in full force.

Plaintiff's petition seeks recovery for total and permanent disability at the rate of $10 per month, alleging such disability began November 8, 1928, the date plaintiff underwent a gallstone operation, and continued from and after said date to date of filing of petition in February, 1934. She also alleged that defendant had paid her, in May, 1929, the sum of $70 on account of said disability, and asked judgment for $560, plus $160.70 for premium money paid in during such disability, for $25 for vexatious delay, and $50 for attorney fees.

Defendant filed answer, generally denying allegations of plaintiff, pleading the policy issued which bore date of May 23, 1927, and setting said policy out in full.

Defendant also pleaded "that plaintiff has not at any time heretofore made or submitted any proof to it of the alleged disability sued on and set forth in plaintiff's petition herein," and that plaintiff had not made or submitted any proof of any disability beginning prior to January 10, 1933, and that in May, 1933, plaintiff submitted proof of an alleged disability, different and other than the one sued on, and in which proof it is stated that her disability was not permanent.

Evidence for plaintiff showed she was operated for gallstones, but the exact date of said operation is not shown, but it does show that she was wholly unable to do "any work" from that day until date of trial; that defendant paid her $70 on account of said disability and never thereafter paid her any more; that in May, 1933, one Cy Smith, an agent of defendant, called on her while she was in bed and filled in a questionnaire, known as "Exhibit B," dating her disability as of January 10, 1933; that she asked him if she would get her disability "from away back" when she should have gotten it. Plaintiff also introduced report of attending physician, it being a companion form of the questionnaire just referred to and a part of Exhibit B, and signed by plaintiff's then physician, wherein date of her disability was placed as of January 10, 1933, and the doctor stated said disability was not permanent. Part of a letter which was never identified or authenticated was also introduced by plaintiff, said letter being dated November 21, 1933, on New York Life Insurance Company stationery, and addressed to one of plaintiff's attorneys, and wherein it was stated: "The Company paid this claim for seven months and then the benefits were terminated." Defendant objected to introduction of this letter for various reasons, one of which was that it had not been properly identified.

Defendant's sole evidence was a letter, written by plaintiff to defendant, dated November 18, 1933, wherein she said: "I am not considering from August 15 but from January, 1933," and threatening suit. She partially explained this letter in her evidence given at the trial.

From an adverse judgment, defendant appealed, alleging a large number of errors, chief among which is that no proof of disability was ever submitted on the claim sued on; that the only proof submitted was on a different claim and as of date of January 10, 1933; that no proof of claim for disability beginning November 8, 1928, the date alleged in the petition, was ever made.

Proof of claim sued on was waived by the company if it paid for seven months on account thereof. It does not matter how proof was made, so long as it was satisfactory to the company. It could have made an independent investigation of its own, or it could construe "mere notice of the insured's disabilities or death as the due proof to which it was entitled," and so require none other from the claimant. Jacoby v. New York Life Ins. Co., 229 Mo.App. 333, 77 S.W.(2d) 840, loc. cit. 845. See, also, Hablutzel v. Home Life Ins. Co., of New York (Mo.App.) 52 S.W. (2d) 480, and Hablutzel v. Home Life Ins. Co. of New York, 332 Mo. 920, 59 S.W. (2d) 639. Upon whatever theory it was done, the specific claim alleged in the petition, and sued on, was evidently satisfactorily proved to defendant company and it paid benefits for seven months on account thereof. The evidence of plaintiff and of other witnesses in her behalf, including medical witnesses, was that ...