Noble v. Missouri Ins. Co.

• Citation: 204 S.W.2d 446
• Decision Date: 16 September 1947
• Docket Number: 27239
• Parties: NOBLE v. MISSOURI INS. CO
• Court: Court of Appeal of Missouri (US)

204 S.W.2d 446

NOBLE
v.
MISSOURI INS. CO

No. 27239

Court of Appeals of Missouri, St. Louis

September 16, 1947

'Not to be reported in State Reports.'

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.

OPINION

BENNICK; PER CURIAM [204 S.W.2d 447]

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 the 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.' [204 S.W.2d 448] The insured agreed to accept the $ 48, and on the same date, which was October 16, 1942, he executed an instrument of 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...