Schoen v. American Nat. Ins. Co.

• Decision Date: 05 January 1943
• Docket Number: No. 26197.,26197.
• Citation: 167 S.W.2d 423
• Parties: SCHOEN v. AMERICAN NAT. INS. CO.
• Court: Missouri Court of Appeals

167 S.W.2d 423

SCHOEN v. AMERICAN NAT. INS. CO.

No. 26197.

St. Louis Court of Appeals. Missouri.

January 5, 1943.

Appeal from Court of Common Pleas, Cape Girardeau County; J. Henry Caruthers, Judge.

"Not to be reported in State Reports."

Suit by Frieda A. Schoen, guardian of the person and curator of the estate of Theodore A. G. Schoen, against American National Insurance Company for total and permanent disability benefits provided in life policy. From an order and judgment sustaining defendant's motion for new trial, the plaintiff appeals.

Reversed and remanded with directions.

J. Grant Frye and Gerald B. Rowan, both of Cape Girardeau, for appellant.

Rush H. Limbaugh, of Cape Girardeau, for respondent.

HUGHES, Presiding Judge.

This suit for total and permanent disability benefits was commenced by the filing of plaintiff's petition on June 30, 1941. The policy was issued December 3, 1926, to Theodore A. G. Schoen, and provided for an annual premium of $53.75, and, in addition to life insurance, insured him against total and permanent disability. The policy contained the following clauses:

"(Page One) Subject to the conditions and provisions set forth under this heading on page two thereof, the company will grant Benefits for Total Permanent Disability as follows:

"Waiver of Premium — The Company will during the continuance of such disability, waive payment of each premium as it thereafter becomes due, commencing with the premium due on the first policy anniversary after receipt of said due proof of disability.

"Life Income to Insured — Six months after the receipt of said due proof of disability the Company will pay to the Insured, if then living and such disability still continued, the sum of Twenty-five Dollars, and a like sum monthly thereafter during the life of the Insured and the continuance of said Insured's disability."

"(Page Two) The Company will grant the benefits for total permanent disability set forth on page one hereof only after one full year's premium shall have been paid and before default in the payment of any subsequent premium hereon if the Insured, prior to the policy anniversary nearest the date of attaining the age of sixty years and while this Policy is in full force, shall furnish due proof to the Company at its Home Office that said Insured has become totally and permanently disabled by bodily injury or disease, so that said Insured is, and presumably will be permanently, continuously and wholly prevented thereby for life from performing any work for compensation, gain or profit, or from following any gainful occupation, and that such disability has then existed continuously for not less than sixty days, no benefits for such total permanent disability to accrue however prior to the submission of due proof as above provided."

The claim of plaintiff was that on January 1, 1938, the insured became totally and permanently disabled by reason of disease of mind and body, and became of unsound mind and unable to manage his affairs, and incompetent to carry on his business affairs, or to understand the nature and extent of his personal and business interests; and that by reason of such mental incompetence incapacitated from giving defendant notice of his said disability or from making due proof thereof. The petition is in two counts, count one being for disability benefits, and count two for a refund of premiums paid during the disability.

At the trial of the case the plaintiff and defendant submitted the following stipulation:

"It is stipulated that the following may be agreed upon as facts in the case and read to the jury, namely:

"1. Frieda A. Schoen was on February 15th 1941, duly appointed guardian of the person and curator of the estate of Theodore A. G. Schoen, an insane person, and the appointment was made by the Probate Court of Cape Girardeau County, Missouri, on which day due proceedings and due adjudication of that fact was had and that she duly qualified as such officer and since that time has been and now is the guardian and curator of such insane person.

"2. That the defendant, American National Insurance Company, is an insurance company organized under the laws of the State of Texas, and licensed to do business at all times herein material, by the Insurance Commissioner of the State of Missouri.

"3. That on December 3rd 1926 the defendant issued to Theodore A. G. Schoen the policy of insurance described in the petition and herewith marked Plaintiff's Exhibit A.

"4. That the premium was paid on each and every premium-paying date in the sum of $53.75 until the premium falling due on December 3rd 1940, and which premium falling due December 3rd 1940 was paid upon order of the Probate Court on May 7th 1941, and that the premium falling due in December 1941 has never been paid.

"5. That at the time the premium that was due on December 3rd 1940 was paid, it was paid by the execution of a new note in favor of the defendant by the plaintiff as guardian and curator of the insured, such new note having been made in the sum of $412.28, and the amount of the note having been arrived at by making it include the sum of $335.00 representing an existing loan on the policy, the sum of $23.53, which represented the interest due on such loan, and the sum of $53.75, which represented the premium due on December 3rd 1940; that this note for $412.28 was executed by Frieda A. Schoen in favor of the defendant and the note is now in the possession of the defendant and has not been paid.

"6. That the defendant received no notice of the disability of the insured until January 15th 1941."

Frieda A. Schoen testified that the insured was 44 years of age; that he was a traveling salesman; that prior to the beginning of his trouble he earned around $200 to $275 a month, but his income decreased so that she went to work to help take care of things at home; that since the fall of 1937 her husband has not spent any money toward the upkeep of his family; that she had been married to him for 23 years; that for some time before Christmas of 1937 she had noticed that her husband was not acting and conducting himself in a normal way; that at Christmas, 1937, they had arranged for a Christmas dinner and had her family and his to take dinner with them, and that insured did not come home on that day or for three or four days thereafter, and when he returned he could not explain where he had been; that his mental condition from then on progressively grew worse. Without going into detail some of the things which the insured did were as follows: Although he had theretofore been neat and careful in his dress, he neglected to change clothes and to shave regularly, and would sometimes shave one side of his face and leave the other side unshaven; he would quit playing cards when guests were being entertained without any reason or excuse; he would fail to have his automobile serviced or to get gasoline; he would drive on the wrong side of the road, and pay no heed to traffic signals; he would fail to change clothes or take a bath for several days at a time, and again changed clothes and took a bath twice a day; he stuttered, paused and repeated in his conversations; he sat and stared at things and went to sleep; he stayed at home when he was supposed to be working; he took up the habit of chewing tobacco which he had not indulged in before; he would chew tobacco and smoke at the same time and throw ashes on the rug and at times spit on the rug; he would order groceries when none were needed. Based on these and other acts of the insured narrated by her, the witness gave it as her opinion that her husband had been of unsound mind and incapable of managing his affairs since the fall of 1937.

Herbert F. Lewis testified that he was Secretary-Treasurer of the Quaker Oil Corporation; that insured sold the Company's line of merchandise during 1936, 1937 and 1938; that for about a year and a half the insured earned about $45 to $50 per month, but about September, 1937, his income began to decline until when they gave him his last check in the latter part of 1938 his earnings amounted to only $4 or $5.

Dr. E. R. Schoen, insured's father, who had practiced medicine for 47 years, testified that he began treating his son in the summer of 1937 and treated him continuously until he was sent to the State Hospital on March 11, 1940; that about Christmas, 1937, he suspected that the insured had syphilis and he sent a specimen of his blood away for analysis in January, 1938; the report on that analysis was negative; that in April or May of 1938 he became more positive in his opinion that insured had syphilis and he submitted another test for analysis and that his opinion was confirmed by a positive report; that in his opinion the insured was not a person of sound mind or able to manage his affairs in December, 1937, and that this condition became worse until he was taken to the Hospital. The witness explained that syphilis tends to soften the tissues of the brain, and that in the case of the insured the disease had affected his spinal chord; that in his opinion the condition of his son would never be improved.

The evidence further showed that on December 12, 1938, the insured made a policy loan note to defendant for $335. The premium on the policy due December 3, 1940, was not paid, but on May 7, 1941, defendant made an additional loan to plaintiff as guardian and curatrix of the insured, in accordance with an order made by the probate court, and for a sum sufficient to pay the prior loan and interest and to pay the premium on the policy which was due December 3, 1940, and the policy was reinstated.

On January 2, 1941, the wife of insured wrote a letter to the defendant in which she said: "I want to advise you that Mr. Schoen has been totally disabled since March 11, 1940, on which day he was entered as a patient at the State Hospital No. 4 Farmington, Mo. and is still at the hospital at this time."

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