Maupin v. Provident Life & Accident Ins. Co.

• Decision Date: 08 November 1934
• Docket Number: No. 22666.,22666.
• Citation: 75 S.W.2d 593
• Parties: MAUPIN v. PROVIDENT LIFE & ACCIDENT INS. CO.
• Court: Missouri Court of Appeals

75 S.W.2d 593

MAUPIN v. PROVIDENT LIFE & ACCIDENT INS. CO.

No. 22666.

St. Louis Court of Appeals. Missouri.

November 8, 1934.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

"Not to be published in State Reports."

Action by Robert E. Maupin against the Provident Life & Accident Insurance Company, in which defendant filed a counterclaim. From the judgment, defendant appeals.

Reversed in part, and affirmed in part.

Jones, Hocker, Sullivan, Gladney & Reeder, of St. Louis, for appellant.

Terry & Terry, of Festus, for respondent.

SUTTON, Commissioner.

This is an action on an accident insurance policy issued to plaintiff by defendant on September 28, 1923, at Crystal City, in Jefferson county. The policy provides as follows:

"The Provident Life and Accident Insurance Company of Chattanooga, Tennessee, * * * does hereby insure Robert E. Maupin * * * against:

"(1) The effects resulting directly and exclusively of all other causes, from bodily injuries sustained during the life of this policy, solely through External, Violent and Accidental Means (excluding suicide, sane or insane, or any attempt thereat), called `such injury,' as hereinafter set forth.

"(2) Disability resulting from sickness which is contracted and begins during the life of this policy, and after it has been maintained in continuous force for Fifteen Days, called `such sickness,' as hereinafter set forth.

"Part I. The Accidental Death Indemnity to be Nine Hundred Dollars. Weekly Accident Indemnity to be Twenty-Two & 50/100 Dollars. Weekly Sickness Indemnity to be Twenty-two & 50/100 Dollars. * * *

"Part IV. Sec. (a) Or, commencing on date of the accident, for the period during which such injury alone shall wholly and continuously disable and prevent the Insured from performing any and every duty pertaining to any business or occupation, the Company will pay Accident Indemnity at the rate per week specified in Part I, for a period not exceeding three years, and after said three years one-fourth the Weekly Accident Indemnity, so long as the Insured lives and continues totally disabled.

"Sec. (b) Or, if such injury shall not from the date of the accident wholly disable the Insured but shall within thirty days thereafter wholly disable him, or shall, commencing on date of the accident or immediately following total loss of time, prevent him from performing work substantially essential to the duties of his occupation, the Company will pay as indemnity for the continuous period of partial loss of time caused thereby, not exceeding six consecutive months, One-half of Said Weekly Accident Indemnity."

The petition alleges that the policy was issued on September 28, 1923, and that on January 31, 1930, while the policy was in force, plaintiff suffered an accident which was caused by slipping and falling upon the ice and resulted in breaking and fracturing his spine, and that as a result of such injury he became totally and permanently disabled on July 10, 1930, and prays judgment for $22.50 per week.

The answer admits the issuance of the policy, denies generally the other allegations of the petition, and then alleges that the policy does not insure against the injury alleged in the petition, in this, that the injury did not, commencing on the date of the accident, wholly and continuously disable and prevent plaintiff from performing any and every duty pertaining to his business or occupation, nor did said injury, within thirty days after the accident, wholly disable him, nor, commencing on the date of the accident, did the injury prevent him from performing work substantially essential to the duties of his occupation, and alleges further that plaintiff failed and neglected to give defendant written notice of the injury within twenty days after the date of the accident. It further alleges, by way of counterclaim, that the plaintiff on August 2, 1930, made written proof to defendant, and falsely represented therein that the accident occurred on July 8, 1930, and that in reliance upon such false representations defendant was induced to pay plaintiff eight weeks' indemnity, aggregating $180, and prays judgment therefor.

The reply alleges that on August 2, 1930, the defendant, through its agents, required plaintiff to sign certain proofs of injury on forms and blanks prepared by said agents, and that defendant, through its said agents, stated to plaintiff that if he would sign said proofs defendant would waive all the conditions and forfeitures mentioned in the policy, and through the acts, attitudes, and demeanor of its said agents waived and agreed to waive all the conditions and forfeitures mentioned in the policy, and failed to declare a forfeiture of the policy; that relying on said representations of defendant, through its said agents, and relying on the acts, attitudes, and demeanor of said agents, and relying on the failure of defendant, through its agents, to declare a forfeiture of the policy, plaintiff signed and delivered to defendant's agents said proofs of injury; that thereafter defendant in confirmation of said waiver and proofs paid plaintiff eight weeks' indemnity, amounting to $180; and that by reason of said acts the defendant is estopped and barred from asserting the forfeitures set up in its answer.

The trial, with a jury, resulted in a verdict in favor of plaintiff on his cause of action for $1,800, and also in favor of plaintiff on defendant's counterclaim. Judgment was given accordingly, and defendant appeals.

Defendant assigns error here upon the refusal of its instruction in the nature of a demurrer to the evidence. In support of this assignment, defendant insists that the provision of the policy pleaded and relied on by plaintiff for recovery, and on which he recovered below, insures only against total disability commencing on the day of the accident; that is to say, for the period, commencing on the day of the accident, during which the injury wholly and continuously disables and prevents the insured from performing any and every duty pertaining to his business or occupation. We agree that this is the correct interpretation of the policy. Martin v. Travelers' Ins. Co., 310 Mo. 411, 276 S. W. 380, 41 A. L. R. 1372.

Defendant insists that since both the petition and the evidence concede that the accident occurred on January 31, 1930, and total disability did not commence until July 10, 1930, it necessarily follows that the disability sued for, that is, disability for a period commencing on July 10th, is not insured by the policy. The plaintiff insists, on the other hand, that the defendant, through its agents, waived all the forfeiture provisions of the policy, and is estopped to assert the forfeitures pleaded in the answer.

Plaintiff met with an accident on January 31, 1930. At that time he held a clerical position with the Pittsburgh Plate Glass Company at Crystal City. The accident occurred while he was engaged in his work at the plant of his employer. He opened a door to go through it. There was ice outside. It was raining and water was dripping off the roof. He jumped through the door to avoid getting wet, and in so doing slipped on the ice and fell backward on a concrete platform. The small of his back struck the concrete platform. He received medical treatment for the resulting injury, but continued his work without interruption until July 10, 1930, at which time he became totally disabled and remained so down to the time of the trial. It is not contended that any disability developed prior to July 10th.

On August 2, 1930, plaintiff made out preliminary notices of the accident and injury on blanks furnished him by Harvey Colin, an agent of defendant company. These notices were delivered to Frank Hess, also an agent of the company, at his office in Crystal City. Mr. Hess represented defendant company as adjuster. He had been settling claims for the company for a year. He also sold insurance for the company. Mr. Colin worked under Mr. Hess. He sold insurance. In the preliminary notices made out by plaintiff and delivered to Mr. Hess, as before mentioned, plaintiff stated that he was...