State ex rel. Mutual Ben. Health & Accident Ass'n v. Hughes

• Citation: 174 S.W.2d 859,351 Mo. 1081
• Decision Date: 01 November 1943
• Docket Number: 38546
• Parties: State of Missouri, at the Relation of Mutual Benefit Health and Accident Association, a Corporation, Relator, v. Hon. William C. Hughes, Hon. Edward J. McCullen and Hon. Lyon Anderson, Judges of the St. Louis Court of Appeals
• Court: Missouri Supreme Court

174 S.W.2d 859

351 Mo. 1081

State of Missouri, at the Relation of Mutual Benefit Health and Accident Association, a Corporation, Relator, v. Hon. William C. Hughes, Hon. Edward J. McCullen and Hon. Lyon Anderson, Judges of the St. Louis Court of Appeals

No. 38546

Supreme Court of Missouri

November 1, 1943

Record and opinion of Court of Appeals quashed in part.

Moser Marsalek & Dearing and Theo. J. Krauss for relator.

(1) Although there was no evidence that the insured was immediately, continuously and wholly disabled from the date of the alleged accident, respondents, in the course of their opinion, found that "the effect of plaintiff's evidence was to indicate that he did no work at any time after the occurrence of the accident" and, upon such evidence, held that the jury might find for plaintiff. In so holding, respondents contravened a controlling opinion of this court that to recover under the policy plaintiff must sustain the burden of proving inability to work. Martin v. Travelers' Ins. Co., 310 Mo. 411, 276 S.W. 380. (2) In holding that Instruction 1 was not erroneous respondents found that said instruction directed a verdict in favor of plaintiff and that it did not require a finding that the insured was immediately, continuously and wholly disabled from the date of accident, and further found that "if Instruction 1 had been plaintiff's principal instruction it would unquestionably have been erroneous, but, since it was obviously not her principal instruction," it was not erroneous. Respondents' holding that Instruction 1 was not plaintiff's "principal" instruction was predicated upon their finding that Instruction 2, which also directed a verdict for plaintiff, did include the requirement of a finding that the insured was immediately, continuously and wholly disabled. In approving said instruction, which directs a verdict, but omits the requirement of a finding of an essential element necessary to plaintiff's recovery respondents have contravened controlling opinions of this court. State ex rel. Hartford Fire Ins. Co. v. Trimble, 298 Mo. 418, 250 S.W. 393; Bellows v. Travelers' Ins. Co., 203 S.W. 978. (3) Respondents further held that the instruction "is not to be construed as having assumed the fact of an accidental injury," and further that "even if the instruction were to be read as having assumed the occurrence of the accidental injury, it would still not be fatally defective on account of such assumption." In so holding, respondents contravened controlling opinions of this court that it is error for the court to give an instruction which assumes a controverted fact. Woehler v. St. Louis, 342 Mo. 237, 114 S.W.2d 985; State ex rel. Missouri Gas & Elec. Service Co. v. Trimble, 307 Mo. 536, 271 S.W. 43; Barr v. Nafziger, 328 Mo. 423, 41 S.W.2d 559. (4) Respondents, in their opinion, held that the question of vexatious refusal to pay was a question for the jury, properly submitted by Instruction 4, because the defendant "had but little competent evidence to offer, and that of but slight persuasive effect." Relator offered in evidence the written statements of nine witnesses who, in said statements, wholly substantiated the defense, but who, when called by relator, refused to testify in accordance with such statements. In holding that said statements were not admissible, respondents said: "Nor is our conclusion in anywise altered by reason of the undoubted relevancy of such statements to the issue of vexatious refusal to pay." In holding that the question of vexatious refusal was a question for the jury, respondents contravened controlling opinions of this court that the penalty cannot be inflicted unless the refusal was willful and without reasonable cause as the facts appeared to a reasonable and prudent man before the trial. Non-Royalty Shoe Co. v. Phoenix Assur. Co., 277 Mo. 399, 210 S.W. 37; Aufrichtig v. Ins. Co., 298 Mo. 1, 249 S.W. 917; State ex rel. Continental Life Ins. Co. v. Allen, 303 Mo. 608, 262 S.W. 43; State ex rel. John Hancock Mut. Life Ins. Co. v. Hughes, 152 S.W.2d 132; State ex rel. Guekow v. U. S. F. & G., 163 S.W.2d 86. (5) And in holding that the nine statements were not admissible on this question, respondents contravened a controlling decision of this court that any evidence relevant to this issue is competent. Fay v. Aetna Life Ins. Co., 268 Mo. 373, 187 S.W. 861. (6) And in holding that Instruction 4 properly submitted this issue to the jury, although not informing the jury that vexatious refusal to pay meant without reasonable cause as the facts appeared to a reasonable man before the trial, respondents contravened the controlling opinions of this court.

Barak T. Mattingly and Fred Berthold for respondents.

(1) It is well settled that to be totally disabled within the sense of an insurance policy such as the one now in question, it is not essential that the insured be absolutely helpless, but it suffices to bring him within the protection of the policy if his infirmity is such as to render him unable to perform, in the usual and customary way, substantially all of the material acts necessary to the prosecution of his own occupation, business or profession, or, in many cases, any occupation, business or profession which he would be able to engage in except for his disabling infirmity. Heald v Aetna Life Ins. Co. of Hartford, 340 Mo. 1143, 104 S.W.2d 379; Bellows v. Travelers Ins. Co. of Hartford, 203 S.W. 978; Moss v. Metropolitan Life Ins. Co., 84 S.W.2d 395; Eden v. Metropolitan Life Ins. Co., 138 S.W.2d 745; Brown v. Mutual Life Ins. Co. of New York, 140 S.W.2d 91; Rogers v. Metropolitan Life Ins. Co., 122 S.W.2d 5; Farmer v. Metropolitan Life Ins. Co., 85 S.W.2d 235; Young v. Metropolitan Life Ins. Co., 84 S.W.2d 1065, certiorari quashed in State ex rel. Metropolitan Life Ins. Co. v. Allen, 100 S.W.2d 487, 339 Mo. 1156; Buis v. Prudential Ins. Co. of Am., 77 S.W.2d 127; Thomas v. Metropolitan Life Ins. Co., 89 S.W.2d 590; Stoner v. N. Y. Life Ins. Co., 90 S.W.2d 784; Pogue v. Metropolitan Life Ins. Co., 107 S.W.2d 144; Moss v. Metropolitan Life Ins. Co., 84 S.W.2d 395, certiorari quashed State ex rel. Metropolitan Life Ins. Co. v. Hostetter, 92 S.W.2d 122. (2) Instruction 1 did not assume that the death of Zips was caused by an accidental blow. Bloch v. Kinder, 338 Mo. 1099, 93 S.W.2d 932; Reith v. Tober, 320 Mo. 725, 8 S.W.2d 607; Rummels v. Ill. Central Railroad Co., 15 S.W.2d 363; Rishel v. K. C. Public Serv. Co., 129 S.W.2d 851; Long v. Mild, 149 S.W.2d 853; Gilpin v. Aetna Life Ins. Co., 132 S.W.2d 686; Krug v. Mutual Life Ins. Co. of N. Y., 149 S.W.2d 393; Flint v. Loews St. Louis Realty & Amusement Co., 126 S.W.2d 193. (3) There was no dispute in the evidence that the tail gate had fallen and struck insured across the neck, and such evidence is uncontroverted and instruction would not be fatally defective if it assumed an uncontroverted fact. Lewis v. Terminal Railroad Assn. of St. Louis, 61 S.W.2d 234; Fleming v. Joseph F. McMahon Contracting Corp., 45 S.W.2d 952; Keyes v. Chicago, B. & Q. Railroad Co., 31 S.W.2d 50; Miller v. Collins, 40 S.W.2d 1062; Bowers v. K. C. Public Service Co., 41 S.W.2d 810; Hill v. St. Louis Public Serv. Co., 64 S.W.2d 633; Simpson v. St. Louis-San Francisco Rd. Co., 70 S.W.2d 904; Byrnes v. Poplar Bluff Printing Co., 74 S.W.2d 20; Sullivan v. John Hancock Mut. Life Ins. Co., 110 S.W.2d 870; King v. Reith, 108 S.W.2d 1. (4) Instructions must be read and construed together, and verdict will be sustained where they contain complete exposition of law and cover every phase of case, when taken together, though incomplete and objectionable when taken separately. McDonald v. K. C. Gas Co., 59 S.W.2d 37; Jenkins v. Mo. State Life Ins. Co., 69 S.W.2d 666; Engleman v. Railway Express Agency, 100 S.W.2d 540; Schneider v. Dubinsky Realty Co., 127 S.W.2d 691; King v. Rieth, 108 S.W.2d l. c. 5; Dorman v. E. St. Louis Ry. Co., 75 S.W.2d 854; Arnold v. May Dept. Stores Co., 85 S.W.2d 748; Carr v. St. Joseph, 225 S.W. 922. (5) Instruction telling the jury that if they found insured's death caused by blow upon neck then plaintiff's right of recovery was not to be affected by the fact that the injury became infected and diseased, so long as the jury found that death would not have come at the time and under the circumstances that it did except for the blow upon the head and neck, was incidental to the main instruction and did not permit the jury to indulge in speculation and was not argumentative. Krug v. Mutual Life Ins. Co. of N. Y., 149 S.W.2d 393; Fetter v. Fidelity & Casualty Co., 73 S.W. 592. (6) A defendant, considering that the jury is not fully instructed in certain issues, must offer clarifying instructions. Williams v. Guyot 126 S.W.2d 1137; Corbin v. Kansas City, C. C. & St. Joseph Ry. Co., 41 S.W.2d 832; McGinnis v. St. Louis Pub. Serv. Co., 44 S.W.2d 886; Lach v. Buckner, 86 S.W.2d 954; Henry v. First Natl. Bank, 115 S.W.2d 121; Hart v. K. C. Pub. Serv. Co., 142 S.W.2d 348; Hiatt Inv. Co. v. Buehler, 16 S.W.2d 219; La Mear v. Wells, 22 S.W.2d 876; Byram v. E. St. Louis Ry. Co., 39 S.W.2d 376; Taylor v. Alton Rd. Co., 148 S.W.2d 806; Krug v. Mutual Life Ins. Co. of N. Y., 149 S.W.2d 393. (7) Instructions may be supplementary to each other. Burneson v. Zumwalt Co., 159 S.W.2d 605. (8) Instructions are not required to be drawn with such technical accuracy as to be free from hypercritical objection, but are sufficient if jury can correctly understand therefrom the rules of law applicable. Lewis v. Zagata, 166 S.W.2d 541. (9) The question of vexatious refusal to pay was one of fact for the jury to determine. State ex rel. v. Trimble, 322 Mo. 1236, 18 S.W.2d 21. (10) Vexatious delay need not be explicitly proven. Kellog v. German, etc., Ins. Co., 113 S.W. 663. (11)...