Smith v. Mutual Ben. Health & Acc. Ass'n

• Decision Date: 03 May 1937
• Citation: 104 S.W.2d 752,231 Mo.App. 694
• Parties: W. A. SMITH, RESPONDENT, v. MUTUAL BENEFIT HEALTH AND ACCIDENT ASSOCIATION, APPELLANT
• Court: Kansas Court of Appeals

104 S.W.2d 752

231 Mo.App. 694

W. A. SMITH, RESPONDENT, v. MUTUAL BENEFIT HEALTH AND ACCIDENT ASSOCIATION, APPELLANT

Court of Appeals of Missouri, Kansas City

May 3, 1937

Appeal from Circuit Court of Caldwell County.--Hon. Ira D. Beals Judge.

REVERSED.

Judgment reversed.

Orin J Adams for respondent.

John J Robison for appellant.

OPINION

BLAND, J.--

This is an action on a policy of health insurance. There was a verdict and judgment in favor of plaintiff in the sum of $ 583.33. Defendant has appealed.

The facts show that plaintiff operated a lumber yard at Cowgill, dealing in lumber and building materials, keeping his own books; that he carried a policy of accident and health insurance with the defendant, which provided, among other things: (1) That defendant would pay insured $ 100 per month for disability resulting from disease, if such disease confined insured continuously within doors and required regular visits therein by a legally qualified physician, provided said disease necessitated total disability and total loss of time. (2) That the company would pay at the rate of $ 50 per month, but not exceeding one month, for disability, resulting from disease if such disease did not confine insured continuously within doors, but required medical attention, provided said disease necessitated total disability and total loss of time. The policy also provided for written notice to defendant of the sickness within 10 days after the commencement of the disability from such sickness. However, it provided that failure to give notice within the time provided should not invalidate any claim if it should be shown not to have been reasonably possible to give such notice and that such notice was given as soon as was reasonably possible. The policy further provided that proofs of loss must be furnished the company at its office in Omaha, Nebraska, in case of loss of time from disability, within 90 days after the termination of the period for which the association was liable. The policy also provided:

"Strict compliance on the part of the insured and the beneficiary with all the provisions and agreements of this policy, and the application signed by the Insured, is a condition precedent to recovery, and any failure in this respect shall forfeit to the Association all right to any indemnity."

The facts further show that plaintiff became ill on or about September 18, 1931, with typhoid fever; that from September 20, 1931, to March 1, 1932, he was continuously confined because of illness and that he otherwise came within the purview of the $ 100 per month provision of the policy.

The evidence further shows that for the month beginning with March 1, 1932, plaintiff's disability was such as to come within the provisions of the $ 50 per month provision of the policy.

There was a further showing that, during the month of March, 1932, plaintiff was not confined to his house but was "able to get up but might have to go back to bed and then get up again;" that after March 1, he was "weak and I didn't have much use of my hands and feet and couldn't walk much. I did not do anything toward looking after my business until July, 1932. It was the latter part of May before I was able to walk up town and I never transacted any business, that is work, until in May." Plaintiff further testified: "After March 1, I was able to get out, go up town and take rides, but did nothing about transacting the business until July, 1932."

The first communication that plaintiff had with the company was a letter that he wrote it concerning his claim on April 17, 1932. He was at home when he wrote the letter and testified that he was unable to transact any of his lumber business at that time. However, in his proof of loss he stated that he was first able to do any work on March 1, 1932. Plaintiff's physician testified that plaintiff was unable to perform any labor, that is, handle lumber or heavy materials, until the late summer of 1932; that his hands and feet were swollen and that this condition continued until the late summer; that "He was able to be up and outside after March 1st, but was unable to perform book work or work of any kind to any great extent;" that from March 1st until July 1st, he was unable to do any manual labor but might have been able to work some but not carry on his business. The witness would not say that he was totally disabled. "He could give directions and supervision as to the operation of his business. He could not have been at his business all of the time." In the opinion of the witness, the plaintiff was unable to work until June 1, 1932.

The defense made to the claim was that plaintiff did not give timely notice of his disability and did not furnish proof of loss within the time required by the policy and, defendant now insists that its instruction in the nature of a demurrer to the evidence should have been given because of plaintiff's violation of the terms of the policy relative to these matters.

The evidence taken in its most favorable light to the plaintiff, shows that the provisions of the policy in reference to notice was not violated. Defendant, in a letter to plaintiff, dated August 2, 1932, admitted that it had received the notice on November 12, 1931. While, this was not within 10 days after the commencement of plaintiff's disability, the evidence shows that it was not reasonably possible for plaintiff to have given such a notice within that time and that the notice was given as soon as was reasonably possible.

However, the evidence shows that the provisions of the policy requiring that proof of loss be furnished within 90 days after April 1, 1932, the termination of the period for which defendant was liable, was not complied with, for the reason that the proof of loss was not received by defendant until July 23, 1932.

Plaintiff sought to show a waiver of the timely furnishing of the proof of loss by evidence tending to show that an an agent of the defendant, located at Cowgill, one Thompson, stated to plaintiff that he might withhold the proof of loss until he had fully recovered and went back to work.

Defendant insists that said agent had no authority to waive the matter of timely proof of loss. The evidence in connection with the authority of Thompson shows that he was appointed by the company as a local collector or treasurer of defendant at Cowgill; that his duties were to collect and remit premiums to the company at its office in Omaha, Nebraska,...