Rogers v. Metropolitan Life Ins. Co.

• Decision Date: 06 December 1938
• Docket Number: No. 24733.,24733.
• Citation: 122 S.W.2d 5
• Parties: ROGERS v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

122 S.W.2d 5

ROGERS v. METROPOLITAN LIFE INS. CO.

No. 24733.

St. Louis Court of Appeals. Missouri.

December 6, 1938.

Appeal from Circuit Court, St. Francois County; Taylor Smith, Judge.

"Not to be published in State Reports."

Action by Clinton F. Rogers against the Metropolitan Life Insurance Company, to recover total and permanent disability benefits. From a judgment on a verdict for plaintiff, defendant appeals.

Affirmed.

Fordyce, White, Mayne, Williams & Hartman, of St. Louis, and Oliver & Oliver, of Cape Girardeau (Harry Cole Bates, of New York City, of counsel), for appellant.

C. P. Damron, of Farmington, for respondent.

BENNICK, Commissioner.

This is an action by plaintiff, a former employee of St. Joseph Lead Company and its affiliate, Mine La Motte Corporation, 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 lead company for the benefit and protection of the latter's employees and those of its affiliate.

The disability clause of the policy provided that upon receipt at defendant's 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 for the period of time specified in the policy, should the employee continue to be totally and permanently disabled.

Plaintiff was insured under the policy for the sum of $1,500, at which figure, in the event of the occurrence of total and permanent disability while so insured, he was entitled to receive a maximum of thirty-eight monthly installments of $41.33 each.

Entering the service of the lead company about 1926, plaintiff continued in its employ until March 15, 1931, when the mines at Mine La Motte closed down with the result that practically all of the men, including plaintiff, were thrown out of employment. In other words, whatever the character and extent of plaintiff's disability may actually have been during the period of his employment by the lead company, there is no pretense that he left the company's employ because of physical incapacity, but instead it was an undisputed fact that he continued on the job, putting in about the normal amount of time, until he was laid off along with the other employees when further operations in the mines were discontinued by the company.

Thereafter he was employed by different government agencies on relief projects undertaken in St. Francois County, and on December 31, 1936, or five years, nine months, and sixteen days after the termination of his employment by the lead company, he instituted this action in which he seeks to recover from defendant upon the theory that during the period of his employment by the lead company, and while insured under the policy, he became totally and permanently disabled within the contemplation of the disability clause of the policy.

Defendant's answer was, in effect, a general denial, coupled with affirmative allegations, first, that plaintiff had failed to make due proof to defendant at its home office in accordance with the terms and conditions of the policy; and second, that he had been guilty of such laches and unreasonable delay in the presentation of his claim as to preclude him from the right to prosecute the same.

Tried to a jury upon the issues joined, a verdict was returned in favor of plaintiff, and against defendant, for the sum of $1,570.54, representing the aggregate of thirty-eight installments of $41.33 each, or, in other words, the full amount of benefits payable to plaintiff at the sum for which he was insured under the policy. Judgment was rendered accordingly, and defendant's appeal to this court has been perfected in the usual course.

Insisting that the evidence failed to make out a case of total and permanent disability within the coverage of the policy, defendant argues as a matter of chief consideration that the court erred in refusing its request for a directed verdict at the close of all the evidence.

It is now well settled (at least in this state) that to be totally disabled within the meaning of such a disability provision as is contained in the policy now before us it is not necessary that the insured be absolutely helpless, but that it suffices if it be shown that his infirmity renders him unable to perform, in the usual and customary way, substantially all of the material acts which are necessary to the prosecution, either of his particular occupation, business, or profession, or of any occupation, business, or profession which his age, training, experience, education, and physical condition would fit him for except for his disabling infirmity. Heald v. Aetna Life Insurance Company of Hartford, Conn., 340 Mo. 1143, 104 S.W.2d 379; Moss v. Metropolitan Life Insurance Co., 230 Mo.App. 70, 84 S.W.2d 395; Farmer v. Metropolitan Life Insurance Co., 230 Mo.App. 80, 85 S.W.2d 235; Barton v. Metropolitan Life Insurance Co., Mo.App., 103 S.W.2d 889; Smith v. Metropolitan Life Insurance Co., Mo.App., 108 S.W.2d 995; Wright v. Metropolitan Life Insurance Co., Mo.App., 115 S.W.2d 102.

What proof will be required to show permanency of the disability will in each instance depend upon the language of the policy as the same determines the character of the disability insured against. It is enough for our present purposes merely to point out that where the policy provides (as is true in the instant case) for the discontinuance of benefits in the event of the recovery of the employee before all installments shall have been paid him, the employee is not required, in order to establish his right to begin receiving the benefits, to prove the reasonable certainty of his total disability continuing for the full duration of his life, but instead he bears his burden when he proves the occurrence of total disability while insured under the policy, whereupon his right to the benefits accrues to him, subject to the limitations and restrictions contained in the policy with respect to the insurer's obligation for the continuance of their payment.

In this case plaintiff is a man now about forty-nine years of age, possessed of a fourth-grade education, whose "line of work" is mining, and who is quite evidently equipped by training and experience for nothing but such manual labor as his physical condition will permit him to perform.

The medical evidence in the case came entirely from Dr. A. M. Frank of St. Louis, Missouri, and Dr. George L. Watkins of Farmington, Missouri, neither of whom had ever treated plaintiff as his physician, but both of whom had made physical examinations of him with respect to the prosecution of his claim for benefits under the policy.

Dr. Frank made two examinations of plaintiff, the first on December 27, 1932, at the time of the preparation of proofs of disability, and the second on May 6, 1937, at the time the doctor's deposition was being taken for use as evidence in the trial of the case.

At the time of the first examination, which was made one year and nine months after the termination of plaintiff's employment with the lead company, Dr. Frank found that plaintiff had a definite disease of his cardiovascular system, including an enlargement of the heart to the right; hypertension or high blood pressure, which involved the myocardium; and a tachycardia, or increased rate of heart beat. In view of all such involvements, Dr. Frank stated that the function of plaintiff's heart was definitely impaired, and that any strain or effort would make its rate increase, causing plaintiff to tire easily and become short of breath. In addition his examination revealed that plaintiff was suffering from bronchitis, arthritis, and nephritis, the latter a definite kidney condition as evidenced by albumin and casts which were disclosed in a specimen that was taken.

At the second examination, which was made four years and five months later, Dr. Frank found the same conditions present as before, save that in the interval they had become progressively worse. He stated that any person who has a myocardial and hypertension condition should be at rest; that among the symptoms of hypertension are shortness of breath, inclination to tire easily, and sometimes various pains throughout the muscles of the body; that any labor, by increasing the blood pressure and thereby causing further damage to the heart and kidneys, will affect the health of a person who suffers from a myocardial and hypertension condition; and that in view of plaintiff's physical condition, ordinary manual labor would unquestionably impair his life.

Dr. Watkins likewise made two examinations of plaintiff, the first in 1935, four years after the termination of plaintiff's employment by the lead company, and the second a week before the trial of the case in July, 1937. He too testified to findings of hypertension, enlargement of the heart, and myocarditis or chronic inflammation of the muscles of the heart, and stated that "considerable exercise such as would be involved in the performance of ordinary manual labor would cause a weakening of his heart by raising the pressure and taking away the supply of nerve energy and bring him nearer to decompensation".

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