TRIMBLE
J. SHAIN, P. J., concurring.
OPINION
TRIMBLE, J.
On
April 25, 1927, the appellant, American National Insurance
Company, issued and delivered to one of the plaintiffs,
Missouri State Teachers Association, what is termed a
"Master Policy" of insurance (otherwise called a
group policy), No. G-4600, whereby it granted insurance to
such members of the Missouri State Teachers Association as
elected to carry what, for convenience, we will call
individual insurance, and who paid thereon the required
premiums. This master policy created term insurance which
would expire on June 1, 1928, but on that date could be
renewed for a like period of one year, upon payment of the
requisite premiums for that year and so on yearly thereafter
so long as the premiums for the next year were paid. It was
thus properly renewed until noon of June 1, 1932. Said
master, or group policy No. G-4600 promised, among other
things, to pay, in complete discharge of liability to any
person injured, the amount payable in the event of said
person's death if said person has,
during the existence of said master policy, and like-wise of
his certificate, suffered, for a period of at least six
months, total disablement which began before the person
injured had attained the age of sixty years. Such total
disablement "must be shown to be such as to justify the
presumption that it would continue throughout the entire
lifetime of the said person and during that time wholly
prevent the said person from pursuing any occupation for
wages, compensation or profit." Of course, the policy
required notice or "due proof" of these matters,
but as no question is raised as to the furnishing of notice,
no mention is made of the requirement of such notice.
The
plaintiff, Sam Charles Stephenson, was, on June 1, 1929,
insured by certificate No. 2523, issued by authority of said
master policy, in the sum of $ 5000, to be paid to him on the
terms and conditions in reference to disablement as has been
hereinabove stated.
Alleging
that he is now (April 15, 1933), forty-nine years of age,
and, during all the times since May 15, 1932, he was and is
totally and permanently disabled for life as hereinbefore set
out and described, he brought this action against the
American National Insurance Company, appellant herein, for
said sum of $ 5000.
It
seems that on the twenty-first of April, 1932, a master
policy No. G-101 was by another company, the North American
Life Insurance Company of Chicago, issued to the Missouri
State Teachers Association, and under said master policy No.
G-101 a policy or certificate No. 1057 was issued to Sam C.
Stephenson for $ 5000 "payable if the member becomes
totally and permanently disabled before age sixty," such
payment, however, was to be in certain installments chosen by
the member, the number and amount of which to be according to
a certain table named in the paragraph entitled "Modes
of Settlement."
On
November 3, 1933, after suit was brought against the American
National Insurance Company it, in an answer filed, asked the
court to cause the North American Life Insurance Company of
Chicago (being the other, or second, company hereinabove
mentioned), to be made a party defendant; and in compliance
with the request of said first named defendant, the American
National Insurance Company, the court made said North
American Life Insurance Company of Chicago a party defendant,
and ordered a writ or summons for it, all of which was done.
Thereupon,
in accordance with that situation brought about by the first
named defendant, an amended petition was filed in which
insured, Stephenson, and Missouri State Teachers Association
are plaintiffs and both of the aforementioned insurance
companies were defendants.
Said amended petition, omitting allegations as
to plaintiff Stephenson's business and residence, and the
incorporation of the other parties to the suit, contained the
following allegations:
"Plaintiffs
further state that on June 1, 1929, defendant, American
National Insurance Company, made, executed and delivered its
certificate of insurance No. 2523, dated of that date
whereby in consideration of the payment by plaintiff
Stephenson to defendant, American National Insurance Company,
of premiums, dues and assessments said defendant on said date
delivered its said policy to plaintiff Stephenson, in which
policy it recites that said defendant insured said plaintiff
in sum of $ 5000, to be paid
to the beneficiary of said plaintiff upon the death of said
plaintiff or payable to said plaintiff upon his total
permanent disability, upon due proof furnished to said
defendant that said plaintiff has suffered, subsequent to the
date of said May 15, 1932, for a period of six months, total
disablement, and before this plaintiff attained the age of
sixty years, and that said total disablement be shown to be
such as to justify the presumption that it would continue
throughout the entire subsequent lifetime of plaintiff
Stephenson, and during that time, wholly prevent plaintiff
Stephenson from pursuing any occupation for wages,
compensation or profit. It is further recited in said policy
that the same is subject to the terms and conditions of
defendant, American National Insurance Company, group policy
No. G-4600, executed and delivered by said defendant
insurance company to the plaintiff association, with which
association plaintiff Stephenson had at all times herein
mentioned group insurance relationship. Said policy No. 2523
is herewith filed and made a part of this petition.
"Plaintiff
Stephenson further states that on May 15, 1932, while said
policies No. 2523 and No. G-4600 were in full force, said
plaintiff, by reason of blood disease, disease of the leg,
mental disease, chronic nephritis and diabetes was and became
on said date totally and permanently disabled thereby and at
all times since said date and now, he was and still is
totally and permanently disabled, and said total disablement
was and is such as to justify the presumption that said
disablement will continue throughout the entire subsequent
lifetime of this plaintiff, and during all the times since
May 15, 1932, wholly prevented him from pursuing any
occupation for wages, compensation or profit and will so
disable him during his remaining lifetime; that he is now of
the age of forty-nine years; that he further states that at
all of the times herein mentioned since June 1, 1929, he was
and still is in good standing with and a member of plaintiff,
Missouri State Teachers' Association, and was during said
times a person having through defendant, American National
Insurance Company, group insurance relationship with said
plaintiff association under group policy No. G-4600, and has
at all times paid all his dues, costs and premiums due to
said plaintiff association and to said defendant, American National Insurance Company. That said
plaintiff association was at all times herein mentioned in
good standing with defendant, American National Insurance
Company, and he has paid, kept and performed all of the terms
of said group policy No. G-4600 and the terms of said policy
No. 2523 and said plaintiff association has also kept and
performed all of its agreements and terms of said group
policy No. G-4600 and policy No. 2523.
"Plaintiffs
further state that on April 21, 1932, plaintiff association
secured from defendant North American Life Insurance Company
of Chicago, its group life policy No. G-101, which said
policy by its terms became effective at noon June 1, 1932,
and that said policy was secured by said plaintiff
association to continue insurance on the lives of such
members of said plaintiff association as desired to continue
carrying such group insurance; that on said June 1, 1932,
plaintiff Stephenson was a member of said association in good
standing; that thereupon on said June 1, 1932, said
defendant, North American Life Insurance Company, made,
executed and delivered its policy and certificate to
plaintiff Stephenson, said certificate being No. 1057, by the
terms of which and in which certificate it recites that said
defendant agrees to pay to the beneficiary of plaintiff
Stephenson, in event of his death, the sum of $ 5000 and if
the said Stephenson becomes totally and permanently disabled
before he reaches the age of sixty years that said defendant
would pay to him the said sum of $ 5000 and, that upon
receipt of due proof said plaintiff Stephenson has become
totally and permanently disabled by bodily injury or disease
so as to be wholly prevented thereby for life from engaging
in any occupation or business for remuneration or profit and
that such total disability already continued uninterruptedly
for at least six months, said company, to-wit: North American
Life Insurance Company, will waive further payment of premium
as to such Stephenson and will pay in full settlement to said
Stephenson under said policy the sum of $ 5000. That said
policy and certificate No. 1057 is herewith filed and made a
part of the petition.
"Plaintiffs
further state that on June 1, 1932, while said policies No
1057 and No. G-101 were in full force said plaintiff
Stephenson by reason of blood disease, disease of the leg,
mental disease, chronic nephritis and diabetes was and became
on said date totally and permanently disabled so as to be
wholly prevented thereby for life from engaging in any
occupation or business for remuneration or profit and that
such
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