Roderick v. Metropolitan Life Ins. Co.
| Decision Date | 08 December 1936 |
| Citation | 98 S.W.2d 983,231 Mo.App. 852 |
| Parties | WILFORD RODERICK, RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Washington County.--Hon. E. M Dearing, Judge.
AFFIRMED.
Judgment affirmed.
Edgar & Banta, Fordyce, White, Mayne & Williams and R. E. La Driere for appellant.
The Court should have given defendant's instruction in the nature of a demurrer to the evidence because (a) The testimony adduced at the trial does not show total and permanent disability, and (b) even though it is found that total and permanent disability existed, the plaintiff is barred from recovery because he did nothing to discharge his obligation to minimize the loss. Cody v. Hancock Ins Co., 163 S.E. 4, 111 W.Va. 518, 86 A. L. R. 354; Finkelstein v. Metropolitan Life Ins. Co., 273 N.Y.S. 629; Equitable Insurance Co. v. Singletary, 71 F.2d 409; Eggen v. United States, 58 F.2d 616. (2) The Court erred in giving plaintiff's instruction No 1 which, though it is his main instruction, nowhere submits the vital question as to whether plaintiff was estopped because of failure to minimize the loss by steps to effect a cure. Perkins v. Equitable Life Assurance Society, 73 S.W.2d 415; State ex rel. Long v. Ellison, 272 Mo. 571; Hiegold v. United Rys. Co., 308 Mo. 142; McDonald v. Crider, 277 S.W. 980; Walker v. White, 192 Mo.App. 13; Macklin v. Fogel Construction Co., 31 S.W.2d 14. (3) The Court erred in giving plaintiff's instructions Nos. 3, 4, 5, 6 and 7, because there was no basis for such instructions in the evidence, and because said instructions repeatedly minimize and belittle the position of the defendant and unduly emphasize plaintiff's contention. Miller v. Williams, 76 S.W. 355; Fantroy v. Schirmer, 296 S.W. 235; Barr v. State of Kansas, 105 Mo. 557.
Samuel Richeson for respondent.
(1) Insurance policies are construed as contracts definitely fixing the insurer's liability and measuring the insured's rights to a recovery. Mutual Life Ins. Co. of New York v. Lovejoy, 201 Ala. 337, 78 So. 299, L.R.A. 1918D, 860; Prange et al. v. International Life Ins. Co., 329 Mo. 651, l. c. 661. (2) Insured suing for disability benefits under insurance policy containing no requirement that insured submit to treatment is not required to comply with treatment required or suggested by physicians for minimizing damages. Volunteer State Life Ins. Co. v. Weaver (Ala. Sup. Ct.), 167 So. 268; Boughton v. Mutual Life Ins. Co. of N. Y., 183 La. 908, 165 So. 140; Prudential Ins. Co. of America v. Brasier, 260 Ky. 240, 84 S.W.2d 43; Ford v. New York Life Ins. Co. (Sup. Ct. So. Carolina), 176 S.C. 186, 180 S.E. 37; Temples v. Prudential Ins. Co. of America (Tenn. Ct. Appeals), 79 S.W.2d 608; Jefferson Standard Life Ins. Co. v. Hurt, 254 Ky. 603, 72 S.W.2d 20; Aetna Life Ins. Co. of Hartford v. Wells (Ky. Ct. Appeals), 72 S.W.2d 32; Tittsworth v. Ohio National Life Ins. Co. (Tenn. Ct. Appeals 1927), 6 Tenn.App. 206; Maresh v. Peoria Life Ins. Co., 133 Kan. 191, 299 Pacific 934. (3) Estoppel is an affirmation defense and must be pleaded and proved. Laughlin v. Wells, 314 Mo. 474, l. c. 481; Creek v. Railroad Co., 293 Mo. 541.
--This is an action by plaintiff, Wilford Roderick, to recover from defendant, Metropolitan Life Insurance Company, certain total and permanent disability benefits alleged to be due him under a policy of group insurance issued by defendant to the St. Joseph Lead Company for the benefit and protection of the latter's employees of whom plaintiff was one until the time of the termination of his employment on December 23, 1930.
The disability clause of the policy provided that upon receipt at its home office in New York City of due proof that any employee, while insured under the policy, and prior to his sixtieth birthday, had become totally and permanently disabled as the result of bodily injury or disease so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit, the company would waive the payment of further premiums as to such employee, and six months after receipt of such proof, and in lieu of the payment of insurance at his death, would commence to pay monthly installments of benefits computed as to number and amount upon the basis of the amount of insurance in force on the life of the employee, such payments to continue within the limits of the coverage of the policy for so long as the employee's total and permanent disability should itself continue.
Plaintiff was concededly insured under the policy in the sum of $ 3500, at which figure, in the event he sustained a case of total and permanent disability within the coverage of the policy, he was entitled to receive a maximum of eighty-eight monthly installments of benefits of $ 44.66 each.
In his petition plaintiff counted upon the fact that at and prior to the date of the termination or his employment by the lead company he had become totally and permanently disabled within the meaning and coverage of the policy so as to be entitled to receive the monthly benefits provided for therein.
The answer was a general denial, coupled with a specific denial that plaintiff was totally and permanently disabled within the purview of the policy; that the policy was in force and effect on the date of the accrual of plaintiff's disability; and that plaintiff had submitted due proof of disability as was required of him under the provisions of the policy.
Following a trial to a jury, a final judgment was entered in favor of plaintiff, and against defendant, in the sum of $ 580.58, the aggregate of thirteen installments of benefits. Defendant's appeal to this court has followed in the usual course.
The chief insistence on defendant's part is that the court erred in refusing its requested instruction in the nature of a demurrer to all the evidence. Its point is that the evidence adduced at the trial did not serve to show total and permanent disability as plaintiff claimed, but that even though a contrary view should be taken of the evidence, plaintiff was nevertheless barred from a recovery because of the fact that he had not resorted to a surgical operation in order to relieve or minimize his disability.
That plaintiff's evidence made out a case of total and permanent disability within the meaning of the policy is not to be seriously questioned if we disregard for the moment the idea that his disability, which was otherwise shown to exist, might perhaps have been removed or lessened by a surgical operation. Dr. J. P. Yeargain, who was plaintiff's attending physician, testified that plaintiff was suffering from a gall bladder condition which not only rendered him unable to perform manual labor, but which would in fact be aggravated if he should attempt to perform manual labor. By way of questioning the substantial effect of plaintiff's evidence, defendant endeavors to make something of the fact that Dr. Yeargain testified not so much from records as from his memory or personal recollection of the case, and in the course of his cross-examination admitted the possibility of mistake in his diagnosis. It is enough merely to point out that while the matters thus suggested by defendant might undoubtedly have been taken into account by the jury in determining the weight to be accorded the doctor's testimony, they obviously did not serve to destroy its probative force and value, and for our purposes on appeal, having been believed by the jury, it is to be taken as having established the truth of the facts to which the doctor testified.
So the question before us actually resolves itself into one of whether, conceding that plaintiff was shown to be totally and permanently disabled within the meaning of the policy unless he underwent an operation to relieve himself of the condition which had brought about his disability, he was nevertheless to be precluded from a recovery in this action because he had not submitted to such an operation.
The basis for defendant's present insistence is to be found in Dr. Yeargain's testimony to the effect that "plaintiff will probably get worse unless there is something done to prevent it by way of surgical interference in the form of an operation, which is a major operation, but the danger is not so great;" that "his condition would be aggravated unless he was operated on, and that an operation might cure him;" and that "if it was a successful operation he would be able to return to work."
Regardless of the testimony of the doctor with respect to the possibility of a cure through a surgical operation, we think that defendant now finds itself in no very good position to urge that plaintiff should be barred from a recovery because he had not had such an operation as the doctor had in mind. We say this for the reason that in that small number of reported cases wherein claimants for disability benefits have been denied recovery because of the fact that they had not submitted themselves to operations in order to minimize their disability, the denial of recovery has usually been put upon the ground of estoppel, that is, that they were estopped to claim benefits for a disability which they might have cured and removed if they had been willing to comply with the course of treatment prescribed for them by their physicians. In this case, however, there was no showing that Dr. Yeargain or any other physician had ever suggested to plaintiff that he should have an operation for his gall bladder trouble, and so there was no proof of a refusal on his part, and consequently no basis for defendant's present claim of estoppel or its legal...
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