Reddick v. Northern Accident Co.

• Decision Date: 28 March 1914
• Citation: 165 S.W. 354,180 Mo. App. 277
• Parties: REDDICK v. NORTHERN ACCIDENT CO. et al.
• Court: Missouri Court of Appeals

165 S.W. 354

180 Mo. A. 277

REDDICK v. NORTHERN ACCIDENT CO. et al.

Springfield Court of Appeals. Missouri.

March 28, 1914.

1. INSURANCE (§ 530) — CONTRACTS — CONSTRUCTION —"WAGES."

An accident and health policy made assured's statements in the application a part thereof, and provided that the monthly indemnity should not exceed the money value of assured's time. Assured stated in the application that his monthly "wages" were $70 a month, while at the time he received for services as clerk only $40. He was receiving at the time $30 a month from a farm he owned. Held, that assured, sustaining a personal injury, was entitled only to recover an amount based on an earning capacity of $40 a month, since "wages," which is compensation given to a hired person for his services, does not include income.

2. INSURANCE (§ 646)—ACCIDENT INSURANCE —DEFENSES—BURDEN OF PROOF.

An insurer, seeking to escape liability on an accident policy providing for monthly indemnity for loss of time resulting from bodily injuries, on the ground that assured sustained an injury while under the influence of intoxicating liquor, or in consequence thereof, has the burden of proving the defense.

3. APPEAL AND ERROR (§ 1039)—HARMLESS ERROR—ERRONEOUS RULINGS ON PLEADING.

The error, if any, in permitting plaintiff to file a reply out of time will not be considered, where the reply was unproven.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by Samuel Reddick against the Northern Accident Company and another. From a judgment for plaintiff, defendants appeal. Conditionally affirmed.

Williams & Galt, of Springfield, for appellants. A. B. Lovan, of Springfield, for respondent.

FARRINGTON, J.

Action by the assured on an accident and health policy for indemnity. Plaintiff recovered a verdict and judgment for $140, together with $6.50 as interest and $50 as attorney's fee. The insurer appeals.

The policy was issued on January 25, 1906, by defendant Northern Accident Company, whose risks were subsequently reinsured by the defendant National Casualty Company. In consideration of the payment of a monthly premium of $2, plaintiff was insured against death, illness, and accident. For the purpose of this opinion, he was insured at the rate of $70 per month for 12 consecutive months against total loss of time resulting directly from bodily injuries of which there shall be visible, external evidence on the body, and effected through external, violent, and accidental means, and which wholly and continuously, from date of accident, disable and prevent the assured from performing every duty pertaining to any business or occupation.

Plaintiff alleged that on December 27, 1911, he fell from a ladder, breaking a rib and bruising his legs, and that by reason of such injuries he was totally disabled for a period of four months; that he had complied with every condition of the policy, and had demanded payment of the indemnity which defendants have vexatiously refused. He asked judgment for $280, with 6 per cent. interest from April 24, 1912, together with $28 as damages and $75 as an attorney's fee. Defendant, for answer, among other things alleged that it is one of the terms and conditions of the policy that the statements, warranties, and agreements made by the assured in the application became and were a part of said policy; that plaintiff in the application stated that his monthly wages averaged $70 per month, when in fact plaintiff's wages averaged $40 per month. It is averred that the insurer relied upon this statement, and would not have issued the policy with the schedule of indemnity therein contained had it known the truth; that if there is any liability, it is to be computed under the terms of the policy on the basis of $40 per month for the number of days plaintiff was necessarily and continuously confined within the house, and therein regularly visited by a physician. Defendant then offers in the answer to allow judgment to be entered for $55.72—being for 38 days disability at the rate of $40 per month, and for the 10 per cent. penalty provided for by the Missouri law— and for the costs of the action, and tendered in court $5, being "returned premiums on the policy." Plaintiff introduced the policy, which insured him as stated in the petition. Clause 9 provides that "the monthly indemnity under this contract shall not exceed the money value of the assured's time." Clause F provides: "An agent has no authority to change this policy nor to waive any of its conditions. Notice to or from any agent or knowledge acquired by him shall not be held to effect a change or waiver of this policy or any condition thereof." Clause G provides: "Indemnity will not accrue hereunder in excess of the time the assured is, by reason of injury or illness, under the professional care and regular attendance of a legally qualified physician or surgeon." In the application, which is made a part of the policy, it is stated that plaintiff had been a member before, and the answer to the question as to monthly wages was filled in, "$70," and the answer as to the occupation of the assured was filled in "clerk and foreman." The application recites that in forwarding the same the agent acts as the representative of the assured, thus apparently giving the insurance company's appointed agent the open field in which to rope his—lamb.

Plaintiff testified that he had been a clerk in a grocery store for about 30 years; that he had paid the premiums of $2 per month on this particular policy from January, 1906, until December, 1911, when he was injured; that the accident occurred at about 3 or 4 o'clock on the afternoon of December 27, 1906, when he was ascending a ladder in the grocery store; that the ladder in some manner gave way, and he fell into a barrel; that he was excited, and did not remember in what position he fell; that a rib was broken, and his left limb was injured from the knee to the hip. However, after resting, he worked the remainder of the afternoon and delivered some groceries, and at closing time rode home in the delivery wagon, and then walked through an alley and across a lot and delivered some groceries to Mrs. Rowan; that he was very weak, and stumbled and fell as he was going in; that he went to bed about 7 o'clock, not eating any supper; that Dr. Fulbright was called, who bandaged his rib. The doctor testified that he visited plaintiff six times during a period of exactly two months from the date of the accident. Plaintiff testified that the only wages he received was for his services as clerk, which was $40 per month. Plaintiff at the time of the accident did not have the income from the farm which he owned at the time the policy was issued. He testified he was in bed continuously until about the 1st of April; that on April 4, 1912, he went on a street car to see Dr. Heath, who gave him treatments; that he was unable to do anything for a period of six or eight months; that his leg was swollen and very stiff; that he could not have done a hard day's work in a year, and that he could not do it at the time of the trial; that he had not been entirely well since the accident. He testified that he was getting $30 per month from a farm owned by him at the time the application for the policy was made some six years before the injury occurred. He stated in direct examination that the company refused, at the time of his first demand, to pay him the indemnity, and that he had been trying for about a year to collect it, making several demands.

Dr. Patterson testified that he was called to see plaintiff on May 1, 1912, and found his left leg swollen. Defendant objected to him telling whether the condition he found could have been caused by the fall, and the court sustained the objection.

Dr. Fulbright, who was the first doctor in the case, testified that the last of his six visits was made on February 27, 1912; that plaintiff had an...