Montgomery v. Travelers Protective Ass'n of America

Decision Date17 October 1968
Docket NumberNo. 8781,8781
Citation434 S.W.2d 17
PartiesHershel MONTGOMERY, Plaintiff-Respondent, v. The TRAVELERS PROTECTIVE ASSOCIATION OF AMERICA, Defendant-Appellant.
CourtMissouri Court of Appeals

Orville C. Winchell, Lebanon, for defendant-appellant.

Donnelly, Baldwin & Wilhite, David E. Wilhite, James E. Baldwin, Lebanon, for plaintiff-respondent.

TITUS, Judge.

The Travelers Protective Association of America, a fraternal benefit society and the defendant below, appeals from a $1,000 judgment entered on a nine-man jury verdict returned in the Circuit Court of Laclede County in favor of plaintiff Hershel Montgomery, a Class A member of the association. Plaintiff sued for disability benefits resulting from a herniated lumbar disc received in a January 17, 1966, accident, together with interest, damages for vexatious refusal to pay and attorney's fee. Provisions of the society's Constitution governing the benefits payable by the society and with which we are concerned, read:

Article X, Section 5--'Whenever a Class A member * * * shall through * * * accidental means receive bodily injuries which shall * * * immediately continuously, and wholly disable him from transacting any and every kind of business pertaining to his occupation * * *, he shall, upon compliance with and subject to the other provisions, conditions and limitations of this Constitution be paid for the loss of time occasioned thereby (the sums therefor so specified).'

Article XII, Section 5--'Any member * * * sustaining an injury * * * must * * * notify the Secretary-Treasurer * * * in writing within thirty days of the event causing the injury * * *. Should the member fail to give notice as hereinabove provided for * * * (he shall not) be entitled to receive any benefits * * * unless it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible.'

In its brief under the caption 'Points Relied On,' defendant asserts: 'I. The plaintiff-respondent was not immediately and continuously disabled as required by Article X, Section 5 * * * and the amendment in petition on the date of trial was in error. II. Article XII, Section 5 * * * provided for written notice of injury * * * within thirty days and failure results in forfeiture upon non-compliance.' Injected in the 'Argument' portion of the brief (without the issues having been mentioned under 'Points Relied On' and with no citation of authority save 'Section 378.530, R.S.Mo 1959') are two abstractions, to-wit: (a) 'Since defendant is a fraternal benefit society * * * they are not subjected to vexatious delay and attorney fees * * *,' and (b) 'It is hard to determine * * * why the jurors came in with a quotient verdict.'

As to the abstractions just quoted, we first note there is no section of our statutes numbered 378.530, as cited by defendant, and that, contrary to the assertion, V.A.M.S. § 378.330 subjects a fraternal benefit society to damages for vexatiously refusing to pay and for a reasonable attorney's fee in proper circumstances. Also, as the jury was instructed in the form dictated by MAI 32.10 and returned its verdict only allowing damages 'under the policy' (our emphasis), defendant is not in a position to complain, as no award was made for interest, for vexatious refusal to pay or for an attorney's fee. Defendant's statement that 'the jurors came in with a quotient verdict' has no support in the record and cannot be accepted as a substitute for factual proof. Landers v. Smith, Mo.App., 379 S.W.2d 884, 887(4). For a verdict to be a quotient verdict it must be shown there was a prearrangement among the jury to accept and be bound by the unknown and unascertained quotient. Jones v. Midwest Pre Cote Company, Mo., 412 S.W.2d 468, 471(1--2). Where, as here, there is no proof to the contrary, we presume the verdict was proper and not a quotient verdict. Kamo Electric Co-operative v. Earnest, Mo.App., 277 S.W.2d 876, 878(2). Moreover, only nine of the twelve jurors signed the verdict, which makes it self-evident the verdict returned was not the result of an agreement in advance by the entire jury to accept the unknown and unascertained quotient. Another reason we summarily dispatch the issues raised by defendant for the first time in argument is that we are obliged on an appeal to determine only those questions stated in the 'Points Relied On.' Holman v. Fincher, Mo.App., 403 S.W. 2d 245, 249; Hough v. Jay-Dee Realty and Investment, Inc., Mo.App., 401 S.W.2d 545, 549(2). Matters which defendant has but casually alluded to in the argument portion of its brief without having stated them under 'Points Relied On' are not preserved or presented for appellate review. Pruellage v. De Seaton Corporation, Mo., 380 S.W.2d 403, 405(3, 4).

The concluding phrase of the first point relied on, supra, pertains to the leave granted plaintiff immediately before trial to amend the petition changing the inception date of disability. Contrary to the requirements of V.A.M.R. 83.05(a)(3) and (e), defendant does not undertake to show wherein and why such action was erroneous or why it is contended the court nisi was wrong in permitting the amendment. There is no citation of authority to this point and it is pursued in argument only by the conclusion, 'The Court, allowing an amendment on the date of the trial, precluded the defense from preparing for this particular evidence. Until that date it was clear, from the pleadings, that the plaintiff had no cause of action * * *. Appellant contends the trial court abused its discretion in allowing the amendment, changing dates of disability on the date of trial * * *.' The manner and form in which this 'point' has been presented would justify us, without further ado, in considering it to have been abandoned on appeal. Holt v. Queen City Loan & Investment, Inc., Mo., 377 S.W.2d 393, 400(13). However, the amendment in the petition changed the date of the commencement of disability from April 27, 1966 to January 17, 1966. In its answer filed long before trial, defendant affirmatively pleaded, 'the Constitution * * * requires that bodily injury must cause immediate disability and must continuously disable the member,' thus making it patent defendant was fully aware of what plaintiff's proof would have to be to permit recovery, and what defendant's evidence would have to be to sustain its defense. The amendment did not change the requirements of the claim or of the defense. See the case of Berlan v. Metropolitan Life Ins. Co., 224 Mo.App. 938, 948(4), 24 S.W.2d 686, 691(4), where, in a suit on a policy of accident insurance, the court of appeals sustained the action of the trial court in permitting plaintiff to change the date of the inception of total disability 'after all the evidence was in.' For more than a year before trial the defendant in the instant case had in its possession plaintiff's statement that he had experienced total disability and had stopped 'working as a result of this injury * * * about January 19, 1966.' When leave to amend the petition was requested and allowed (V.A.M.R. 55.53; V.A.M.S. § 509.490), defendant did not, and very well could not persuasively, claim surprise; neither did it request a continuance. In such circumstances it was discretionary with the trial court to permit the amendment. Browder v. Milla, Mo.App., 296 S.W.2d 502, 508(13). Amendments to pleadings should be liberally permitted, and whether a particular amendment is to be allowed is primarily within the sound judicial discretion of the trial court. Defendant has not shown us that the trial court's discretion was palpably and obviously abused, and its action will not be disturbed. Parson's Construction Co. v. Missouri Public Serv. Co., Mo., 425 S.W.2d 166, 174(13); Pender v. Foeste, Mo., 329 S.W.2d 656, 659(4). Although the remaining abstractions appearing in 'Points Relied On,' supra, do violence to V.A.M.R. 83.05(a)(3) and (e), we will consider them on their merits, V.A.M.R. 83.24, and, as is our duty, recast the evidence and the reasonable inferences therefrom in a light favorable to the plaintiff and the verdict of the jury. Brozovich v. Brozovich, Mo.App., 429 S.W.2d 330, 331(1); Woods v. Standard Personal Loan Plan, Inc., Mo.App., 420 S.W.2d 380, 381(1); Henry v. Baker, Mo.App., 419 S.W.2d 486, 490(3); Schultz v. Queen Insurance Company, Mo.App., 399 S.W.2d 230, 232(1).

In January 1966 the plaintiff was 68 years of age and a resident of Lebanon, Missouri. He and two carpenters in his employ were engaged in building hillside cottages overlooking a lake. To prevent the hill from 'washing,' a concrete wall or rock ledge 'twenty-six or twenty-seven inches tall' had been constructed and, according to plaintiff's petition, testimony and preliminary statement to defendant, it was on January 17, 1966, at either 10 a.m. or 3 p.m., that he was injured when he stepped or jumped from the wall. 'I kind of jumped off it * * * I felt like I hit the ground about ten times as hard as I generally had and it did something in my back.' Prior to this Mr. Montgomery had experienced discomfort in his back and leg due to arthritis 'that had come and gone over the years.' The 'something in my back' which plaintiff felt after jumping off the ledge was 'of the same nature generally as to the trouble' he had previously experienced with authritis, 'but it was much more worse * * * I thought it had just flared up my arthritis more * * * I didn't do any more work after that at all * * * I went back (to the lake) the next two or three days * * * (and) drove down on Friday and paid the boys * * * and then I quit going back.' The tenor of plaintiff's testimony throughout was that he simply surmised the event had activated his preexisting arthritis, and that he was wholly unaware it had produced a herniated disc in his back until he was advised of such fact by Dr....

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