Porter v. Equitable Life Assur. Soc.

• Decision Date: 30 April 1934
• Docket Number: No. 17994.,17994.
• Parties: PORTER v. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES.
• Court: Missouri Court of Appeals

71 S.W.2d 766

PORTER v. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES.

No. 17994.

Kansas City Court of Appeals. Missouri.

April 30, 1934.

Rehearing Denied May 21, 1934.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

"Not to be published in State Reports."

Suit by Marion Lou Porter against the Equitable Life Assurance Society of the United States. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment affirmed.

Roy P. Swanson, Robert E. Coleberd, and Albert L. Reeves, Jr., all of Kansas City, Alexander & Green, of New York City, and Meservey, Michaels, Blackmar, Newkirk & Eager, of Kansas City, for appellant.

Walter A. Raymond and Fenton Hume, both of Kansas City, for respondent.

REYNOLDS, Commissioner.

This is a suit by the respondent, as an employee of the Loose-Wiles Biscuit Company of New York, hereinafter called Loose-Wiles Company, on a certain group policy of accident and health insurance issued by the appellant to the said Loose-Wiles Company, and on two individual certificates issued by appellant to her in the respective sums of $500 and $250. The group policy was of date of, on or about, or as of, July 1, 1926, and effective as of such date. From an adverse judgment of the trial court for the sum of $750 principal and $75 penalties and $300 attorneys' fees, the appellant, after unsuccessful motions for new trial and in arrest of judgment, prosecutes this appeal.

Respondent, in her first amended petition, upon which the cause was tried, alleged the corporate existence of appellant; her employment by the Loose-Wiles Company; the issuance by the appellant to the Loose-Wiles Company of the policy sued upon; and the issuance to her, subject to the terms of said policy, of the two individual certificates in the sums of $500 and $250, respectively. Respondent alleged further that, by said policy and certificates, she was insured against total disability; that about July 1, 1930, while said policy was in full force, she became totally and permanently disabled; that she notified the appellant and appellant refused to furnish blanks; and that, by a rider attached to the policy, it was provided that, upon receipt of proof, the first payment under the total disability provision would include "the amount of monthly disability installments accrued from the commencement of said total and permanent disability." The appellant denied all liability under said policy, refused to entertain respondent's claim thereunder, and failed to furnish blanks for proof of loss; the respondent demanded payment of the policy and alleged vexatious failure and refusal to pay. The petition concluded with a prayer for the principal sum, together with penalties for vexatious refusal to pay and attorneys' fees.

The amended answer admitted the corporate existence of the appellant, the issuance of the group policy, and the issuance of a certificate under said policy to the respondent. It alleged that such policy insured the lives of the employees of Loose-Wiles Company for a term of one year from the registration date of said policy, July 1, 1926, or for the part of such term as an employee should remain in the employ of said company in the specified classes of employees; and that, by the automatic yearly provision of the policy, such policy should automatically cease upon the termination of the employee's employment, without regard to the cause thereof, for the total and permanent disability provisions of the policy. It also alleged that the respondent left the employ of Loose-Wiles Company on November 2, 1929, by voluntary retirement from and abandonment of her employment; that, at the time of her alleged and total disability, respondent was not in the employ of Loose-Wiles Company; and that, at such time, she was not insured under said group policy or otherwise by the appellant. It alleged that respondent was not totally and permanently disabled within the meaning of the terms and provisions of the group policy; that she had not made any premium payments since the termination of her employment; that appellant had never received any proof or claim of disability; and that no one for respondent had furnished or offered to furnish any proof of disability to it. Such amended answer also contained a general denial.

There is evidence in the record tending to show the following state of facts: Respondent is a resident of Kansas City, Mo. About June 1, 1926, she was employed by Loose-Wiles Company at its place of business in Kansas City, Mo., and, about such date, entered upon her employment. The terms of such employment do not appear. At the date of the trial, she was about twenty-six years of age. At the time of her employment, she was given a physical examination. After a period of about six months, her attention was called to the group policy; and her application for an individual certificate was taken by the timekeeper of her employer, which certificate was afterwards issued for $500 and delivered to her on November 1, 1926. About two years later, an additional individual certificate for $250 was issued and delivered to her by the appellant after an application therefor had been taken by the timekeeper of her employer, the Loose-Wiles Company. There was evidence tending to show the authority of the employer, Loose-Wiles Company, over the matter of applications from various employees for individual certificates under said group policy and the issuance and delivery of such certificates to the individual assureds and all matters connected with any claim under the group policy or various certificates. The premiums for such insurance were deducted by the employer each month from the employees' wages and forwarded to the appellant at the end of each month. All applications for insurance and cancellations thereof were handled by the employer's bookkeeper. A supply of blank applications and certificates, furnished by appellant, was kept on hand by the employer; and such blank applications and certificates were filled in by the office manager or his employees in his office and under his direction before delivery. All claims were required to be made to the employer's office manager who, upon a physician's statement being furnished supporting any such claim, sent to appellant for blanks upon which formally to make such claim which was then forwarded to the appellant. Investigation was ordinarily first made to ascertain if claimant was in the employ of Loose-Wiles Company. Checks in payment of such claims, when paid, were forwarded to such office manager for delivery. Until a claim had been made and forwarded by the office manager, the appellant did nothing but receipt for the premiums. A letter, Exhibit 8, written to respondent's attorney by Claude B. Beeks, agent of appellant, stated that all matters pertaining to claims under the group policy were handled through the office of Loose-Wiles Company. In the summer of 1927, the respondent was away from her work about three months on account of sickness. The employer continued her insurance and paid the premiums thereon until she returned to work, when the premiums were deducted from her wages. With the exception of the period of three months above mentioned, it appears that the respondent was constant in the performance of her duties under her employment from June, 1926, until the 2d day of November, 1929. She had begun to feel bad about the 1st day of August, 1929, losing weight rapidly and suffering with a constant pain in her right side. She was unable to return to her work on November 3 on account of her condition of health and consulted a doctor, who required her to stay at home and go to bed. She remained in bed for three weeks, after which she was able to be up and around, but was unable to do much work. Subsequent to such time, she reported to Loose-Wiles Company with the intention of returning to her work, but was not permitted to do so, being advised by her employer that work was slack at such time and that she would be called when needed. While waiting to be called by her employer to return to work, respondent undertook to work at the Mama Cookie Company, but, on account of her condition, was able to work only about one day. Perhaps, at other times, she did a little housework, like washing dishes, which appeared to wear her out. On occasions, she stayed with a neighbor's children while the parents were out. On February 4, 1930, Loose-Wiles Company was notified of respondent's condition. Respondent was thereupon notified by her employer's office manager that she was not entitled to insurance unless she was totally and permanently disabled by injury or disease. Respondent continued to suffer with pains through her abdomen and in her back; and her condition was such as to prevent her doing any work which required her to stand or sit. Light work around the house so fatigued her that she was required to lie down and rest. About the 1st of July, 1930, the respondent for the first time learned that she was totally and permanently disabled, being so pronounced by her physician. At that time, her condition was practically the same as on November 2, 1929. The record does not show that the respondent ever resigned her position with her employer or that she was ever discharged therefrom by her employer, other than such implication, if any, that might arise from the dropping of her name from the pay roll. It does not appear that she ever notified her employer that she was quitting or intending to quit her employment, or that her employer notified her that she was no longer in its employment, at least until after July 1, 1930. Subsequent to the 2d day of November, 1929, her employer continued the payment of the premiums on her certificates until October 20, 1930, although she appears to have been dropped from the employer's payroll January 1, 1930. Respondent was not advised at the time she was dropped from the pay roll that it was intended thereby to...