Paul v. Missouri State Life Ins. Co.

• Decision Date: 13 June 1932
• Citation: 52 S.W.2d 437,228 Mo.App. 124
• Parties: JAMES M. PAUL, APPELLANT, v. MISSOURI STATE LIFE INSURANCE COMPANY, RESPONDENT
• Court: Kansas Court of Appeals

52 S.W.2d 437

228 Mo.App. 124

JAMES M. PAUL, APPELLANT, v. MISSOURI STATE LIFE INSURANCE COMPANY, RESPONDENT

Court of Appeals of Missouri, Kansas City

June 13, 1932

Appeal from Circuit Court of Pettis County.--Hon. Dimmitt Hoffman Judge.

AFFIRMED.

Judgment affirmed.

Crawford & Harlan for appellant.

Montgomery & Montgomery for respondent.

BLAND J. Trimble, P. J., concurs in a separate opinion; Arnold, J. dissents.

OPINION

BLAND, J.

--This is an action to recover upon the total permanent disability clause in a life insurance policy. The policy was issued by the defendant to plaintiff on October 1, 1927, under a group insurance arrangement with the Missouri Pacific Railroad Company, by whom plaintiff was employed as a boiler maker helper. The case was tried before the court without the aid of a jury, and upon an agreed statement of facts, resulting in a judgment for defendant. Plaintiff has appealed.

The material portion of the policy sued upon reads as follows:

"If the Employee shall furnish the Company due proof that before having attained the age of sixty years, he or she has become totally and permanently disabled by bodily injury or disease, and that he or she is then, and will be at all times thereafter, wholly prevented thereby from engaging in any gainful occupation, and that he or she has been so permanently and totally disabled for a period of six months, the Company will immediately pay to the Employee in full settlement of all obligations hereunder, the amount of insurance in force hereunder on the Employee at the time of the approval by the Company of the proofs as aforesaid. . . .

"In addition to or independently of all other causes of total and permanent disability the Company will consider the entire and irrecoverable loss of the sight of both eyes, or the loss or use of both hands, or both feet, or of one hand and one foot as total and permanent disability within the meaning of this provision."

The policy provides that "this amount will be paid either in one sum or installments" but as insured elected to take it in one sum this part of the policy is not important.

The agreed statement of facts recites:

"That on or about the 19th day of December, 1928, and while said policy and certificate were in full force, plaintiff while engaged in his duties as an employee of the Missouri Pacific Railroad Company in Sedalia, Missouri, and while descending from the upper portion of a locomotive upon which he was working, came down upon a tool known as a rivet heating tong, in such a manner that one of the prongs of said tool was forced into his body between the rectum and lower end of his spine for a distance of about four inches; that as a result of said injury plaintiff was confined to the hospital or under the control of the Missouri Pacific Hospital and under the care of doctors and physicians, from the 19th day of December, 1928, until about the 15th day of June, 1930, and during all of said time was unable to pursue any gainful occupation; and before having attained the age of sixty years, because of said injury, was so disabled by said injury, that he was then wholly prevented thereby from engaging in any gainful occupation for a period of eighteen months, and that said disability existed for a period of six months and more, and during and at the expiration of the six months said disability was of such a character that the physicians in charge were unable to determine how long the disability would continue; that due proof of said disability was made to said company and accepted by said company, and that plaintiff has performed all the terms and conditions of said contract on his part and has demanded payment of the sum of $ 2,000 representing said sum payable under said contract, but that defendant has refused to pay said sum or any part thereof, and has denied liability under said contract; that on or about the 15th day of June, 1930, plaintiff resumed work as a boiler maker helper for the Missouri Pacific Railroad and has since said time been so engaged and employed."

Plaintiff contends that as the agreed statement of facts shows that he was totally disabled for a period of more than six months, to-wit, eighteen months, and, as the physicians in charge of his case were unable to determine how long his disability would continue after the expiration of said six months' period, his disability was permanent and that he is entitled to recover under the terms of the policy. In this connection plaintiff says that permanent disability does not mean that the disability must last for life but that it need merely be of indefinite duration; that the policy contains words of a qualifying nature, to-wit, "he, or she, has been so permanently and totally disabled for a period of six months" indicating that the disability, in order to be permanent, need not last forever; that there exists a repugnancy between the "and will be at all times thereafter" clause and the "he, or she, has been so permanently and totally disabled for a period of six months" clause; that this repugnancy must be construed in favor of the insured; that the last mentioned clause is a specific provision, while the former is a general provision, and plaintiff cites cases holding the specific provisions in insurance policies should control. It is also insisted that the policy, properly construed, shows that, if disability continued for six months, the undertaking to pay upon due proof thereof, indicates the intention to pay for disability lasting for only six months. In other words that if disability last for that long, then it will be conclusively presumed to be permanent.

I fail to find any ambiguity or uncertainty in the provisions of this policy. I think that the purpose and intention is clearly manifested therein; that that part of the policy providing for life insurance was for the benefit of insured's beneficiary and that part of the policy providing for payment for total permanent disability was for the benefit of the insured and not the beneficiary. The only way in which it can be conclusively or absolutely established that a disability is permanent is to await the death of the person who suffers it and as before stated, as the disability clause was for the benefit of the insured, it is apparent that it was not intended that the insured should be required to prove a permanent disability of an absolute nature, but only should be required to adduce proof that the permanency of the disability, at the end of the six months' period, was reasonably certain and not absolutely certain. However, the company wanted to test for six months the character of the disability as to its permanency, and it would appear that it did not intend to agree to presume that the disability was permanent because it lasted for six months, regardless of its character whether permanent or not. The permanent character of the disability could be established, upon the expiration of the six months' period of its endurance, by the testimony of physicians as to their opinion as to the permanency of the disability or, if the facts were such that a layman would be capable of passing upon the question, it could be proved by plaintiff without expert testimony, or if plaintiff so desired it could be proved by a combination of both, if the circumstances would permit. However, it seems clear to me that the policy evinces the purpose of requiring a proof of disability of a lasting nature rather than temporary. The word "permanent" in policies of this kind, where there are no qualifying clause, means lasting forever or until death. [Met. Life Ins. Co. v. Noe (Tenn.), 31 S.W.2d 689; Home Benefit Assn. v. Brown (Tex.), 16 S.W.2d 834; Spencer v. Kansas Cas. & Sur. Co., 116 Kan. 491, 227 P. 357; Colby v. Thompson, 207 S.W. 73.]

The real question in the case is whether the clause "he, or she, has been so permanently and totally disabled for a period of six months," creates an ambiguity in the contract. Does it provide for payment for permanent disability or one lasting until death, or for merely temporary disability? I am of the opinion that no ambiguity exists. All of the clauses seem to be entirely in harmony with each other and, if they are, each should be given equal weight. [State v. Cox, 322 Mo. 38, 14 S.W.2d 600.] It is quite apparent that the policy requires the concurrence of four elements in order to provide for payment thereunder: (1st) That before attaining the age of sixty years insured has become totally disabled by bodily injury or disease; (2nd) That because of such disability he is wholly prevented thereby from engaging in any gainful occupation; (3rd) That he, at all times in the future, will be wholly prevented by such disability from engaging in any gainful occupation; (4th) That such disability has lasted for six months.

It would be doing violence to the language of the policy, providing coverage for permanent disability, to say that it is sufficient to show a disability for merely a period of six months in order to establish a right to payment under the policy. In other words, I do not believe that the policy covers a mere disability of an indefinite duration, that is a temporary one, which might or might not last for the duration of insured's life.

It will be borne in mind, by the very nature of things, that the policy could not provide for proof of absolute disability. But, of course, the company was interested in having as much time as possible elapse, after the permanency of the disability became apparent in order to test the question of its reality. It could have provided that it would pay upon the mere occurrence of such a character of disability without its having run any length of time, or it could have provided that it should run any...