Noble v. Missouri Ins. Co.

• Decision Date: 16 September 1947
• Docket Number: No. 27239.,27239.
• Citation: 204 S.W.2d 446
• Parties: NOBLE v. MISSOURI INS. CO.
• Court: Missouri Court of Appeals

204 S.W.2d 446

NOBLE v. MISSOURI INS. CO.

No. 27239.

St. Louis Court of Appeals. Missouri.

September 16, 1947.

Rehearing Denied October 17, 1947.

Appeal from St. Louis Circuit Court; F. E. Williams, Judge.

"Not to be reported in State Reports."

Action by Hunter Noble against Missouri Insurance Company to recover the aggregate of weekly benefits for accident allegedly due under an industrial life, health and accident policy. Judgment for plaintiff, and defendant appeals.

Judgment affirmed.

Jones, Hocker, Gladney & Grand, James C. Jones, III, and Benjamin Roth, all of St. Louis, for appellant.

Frank S. Bledsoe, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action to recover the aggregate of the weekly benefits for accident allegedly due under an industrial life, health, and accident policy issued by defendant, Missouri Insurance Company, to plaintiff, Hunter Noble.

The policy provided for the payment of a death benefit of $48 after the first year, and a weekly disability benefit of $6 after the first six months.

Elsewhere it was provided that weekly benefits for accident would be paid for each period of seven consecutive days that the insured, by reason of accidental injury, was totally disabled from work of any nature if there was external evidence of such injury for the time paid, subject to the limitation that only twenty-six weekly benefits would be paid during any twelve consecutive months, and that the maximum of weekly benefits payable should be sixty-five, after which the provision for disability insurance should be terminated and the premium reduced proportionately.

The insured, an employee of Laclede Packing Company, sustained an accidental injury on March 7, 1941, when a piece of bone flew up and struck his left eye, producing a condition which necessitated the removal of the eyeball. The remaining eye is itself impaired, so that he can only get around alone in "sunshiny places where everything is real light." He testified that following the injury he had not been able to return to his employment or resume his occupation, and that he had been largely dependent upon his children for support.

Six weekly benefits were paid the insured for the period of six weeks from March 7, 1941, the date of the accident, to April 18, 1941. The payments were of course made in recognition of the fact that the insured was "totally disabled from work of any nature" for the period covered by the payments. Each claim blank for a weekly benefit contained a report of the attending physician; and the last of the six blanks, while reciting that the insured's disability was then total, contained the statement, in reply to the question of how long the insured would be prevented by his injury from doing work of any nature, that he "returns to work Apr. 21, 1941." As a matter of fact, the insured did not return to work on April 21st, but as our recital of the facts has already disclosed, had not been able to resume his occupation by the time of the trial in the court below.

The insured testified that when the last payment was made, the agent told him, "We can't pay you any more claims." He also testified that he asked the agent for additional blanks, and that "he wouldn't give me no more blanks to fill out".

After some months the insured had one of his children write the company, whose agent was instructed to have the insured "come in and bring the policy and the book." Later the insured was taken to the company's office, where he was referred to one Suter, the manager of the claim department. Suter reaffirmed the fact that the company would not pay any further claims, but offered to pay the sum of $48 in full release and settlement. While the figure mentioned was a sum equal to the death benefit, it was merely offered as "a settlement to avoid any further litigation." The insured agreed to accept the $48, and on the same date, which was October 16, 1942, he executed an instrument of release prepared by the company in which, in consideration of the payment of the sum of $48, he purported to release the company from any and all claims, demands, or rights of action which he had against the company on account of disability benefits under the policy or otherwise.

The insured sued for weekly benefits aggregating $354, together with interest thereon, and also the statutory penalty and an attorney's fee because of alleged vexatious delay.

For its defense the company relied upon the release executed by the insured on October 16, 1942, which was approximately eighteen months after the expiration of the period for which the company had paid benefits on account of total disability.

Originating in a justice's court, the case went on appeal to the circuit court, wherein, upon a trial to the court alone without the intervention of a jury, the court rendered judgment in the insured's favor for the total amount of $670.14, comprising items of $354, the principal sum sued for; interest of $80.74; a 10% penalty of $35.40; and an attorney's fee of $200. In due time the company filed its motion for a new trial; and this being overruled, it gave notice of appeal, and by proper steps has caused the action to be transferred to this court for our review.

At the close of the case, the court, at the insured's request, gave declarations of law Nos. 1 and 2, peremptorily declaring as a matter of law, not only that the insured had been shown to be totally disabled from the date of his injury, but also that under the evidence in the case there had been no bona fide dispute between the company and the insured upon which the release could have been predicated.

The company raises no issue as to whether the insured was in fact totally disabled at the time of the negotiations leading up to the execution of the release, but stands upon the proposition that it acted in good faith upon the evidence at its disposal, and that the question upon which the validity of the release depends was whether, at the time the release was executed, there were facts within its knowledge which afforded a legitimate basis for its denial of liability at that time. In assailing the declarations given by the court, it earnestly argues that the court erred in concluding that there was no bona fide dispute between the parties upon which the release could have been predicated; and it particularly complains of the peremptory character of the court's declarations, the effect of which, so it insists, was to deny it a trial in the constitutional sense because of the court's assumption, as a matter of law, that no issue of fact existed.

While the decisions have not always been consistent upon the question, it is now the rule in this state that peremptory declarations of law in cases tried by the court without a jury may only be given under the same circumstances as would warrant the giving of peremptory instructions in cases tried to a jury. Where the case depends upon parol evidence, the truth of which is denied or not admitted, or where substantial evidence for the respective parties is contradictory and conflicting, the trier of the facts, whether judge or jury, should make a finding of the facts; and it is no less error in such a situation for the court to declare its own finding as a matter of law than it would be to peremptorily instruct a jury as to the verdict to be returned. Where such a case is tried to the court without a jury, the court, exercising the functions of a jury, must pass upon the credibility of the witnesses and the weight to be accorded their testimony; and, technically at least, it ignores this duty when it gives a peremptory declaration as to what its finding shall be. Central States Savings & Loan Ass'n v. United States Fidelity & Guaranty Co., 334 Mo. 580, 66 S.W. 2d 550; Vincent v. Means, 184 Mo. 327, 82 S.W. 96; State ex rel. v. Butler's Estate, 353 Mo. 14, 181 S.W.2d 768.

It is to be noted, however, that this rule only applies where the evidence raises an issue of fact, and if the situation is such that there is no issue of fact, then the court's only duty is to draw the proper legal conclusions from the admitted facts and peremptorily declare what the ultimate result shall be. A conflict in substantial evidence requires a finding by the...