Stoner v. New York Life Ins. Co.

• Citation: 114 S.W.2d 167,232 Mo.App. 1048
• Parties: LEWIS K. STONER, RESPONDENT, v. NEW YORK LIFE INS. CO., APPELLANT
• Decision Date: 31 January 1938
• Court: Kansas Court of Appeals

114 S.W.2d 167

232 Mo.App. 1048

LEWIS K. STONER, RESPONDENT, v. NEW YORK LIFE INS. CO., APPELLANT

Court of Appeals of Missouri, Kansas City

January 31, 1938

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

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Culver Phillip, Kaufmann & Smith for respondents.

Clark Boggs, Peterson & Becker, Howard B. Lang, Jr., Dean Leopard and Same T. Evans for appellants.

Louis H. Cooke, of Counsel.

OPINION

BLAND, J.

This is an action to recover monthly income benefits upon two similar accident policies insuring plaintiff against total and permanent disability. There was a verdict and a judgment in favor of the plaintiff in the sum of $ 1842 and defendant has appealed.

This is a companion case to that of Lewis K. Stoner v. New York Life Insurance Company, 90 S.W.2d 784, decided by this court. That suit arose in the Buchanan Circuit Court and involved four policies of accident insurance, identical except as to dates and amounts, and was to recover benefit installments for total disability for a period running from September 29, 1933 to March 29, 1934. This court reversed the judgment for the defendant in that case and remanded the cause for a new trial.

After the case reached the lower court plaintiff, in June, 1936, instituted two suits, one in the same court and the other in the Platte Circuit Court, each suit being based on two of the four policies involved in the first case. In each of these two cases plaintiff sued to recover twenty-six monthly installments that had become due during the twenty-six months subsequent to the period covered by the first suit, that is, from March 29, 1934 to May 29, 1936. The present case went to the Daviess Circuit Court on a change of venue.

We need not state the facts involved in this case for the reason that they are fully set forth in the opinion of this court in the first case.

Defendant insists that the court erred in refusing its instruction in the nature of a demurrer to the evidence. In this connection it is admitted that this court, in the first case, held that plaintiff made out a submissible case, but it is stated that the evidence in this case is different from that in that case, in that, in this case, plaintiff's evidence shows that he is now engaged in operating and managing a farm and is earning a livelihood therefrom and, in addition, makes a profit which he divides with his landlord.

It is true that plaintiff's evidence so shows. While the opinion in the first case does not state directly those to have been the facts in that case, it does so inferentially.

However, the court said, l. c. 794; "There is evidence tending to show that, by reason of his (plaintiff's) injuries, he has been wholly unable since sustaining them to do any of the material acts requited in the actual work or farming in the operation and management of said farms or in the prosecution of any business in connection with the operation of said farms involving manual labor, although he has been able, through great efforts attended with much pain and suffering, to direct the operation and management of the same in an imperfect way through others, and has himself been able to ride around and over parts of said farms and to inspect the conditions thereon in a general way and to exercise his judgment with respect to such conditions and with respect to the management and the operation of such farms and the farm work to be done thereon, and to give directions with respect thereto.

"It has been held that the fact that one does that which he is unable to do without great physical pain and effort or without endangering his health or life or that which common preference or care would require one in his condition to desist from doing does not as a matter of law show that he is not totally disabled. [Moss v. Metropolitan Life Insurance Company, supra, and authorities therein cited." [See, also, Smith v. Metropolitan Life Insurance Company, 108 S.W.2d 995.]

Defendant states that in the opinion in the first case we said "that it must be shown that plaintiff was performing his duties in such a way as to earn his livelihood" and if such were shown he was not totally disabled. This is a misconception of what we said at page 795 of the opinion. An examination of the opinion on that page discloses the following comment upon defendant's instructions: "They should have required the jury to find that he was able substantially to perform the duties of his occupation as a farmer in the normal, natural and customary way and in such a way as to earn a livelihood." (Italics ours.)

There was evidence in the case at bar, from which the jury could say, although plaintiff did perform certain of his farm duties, which resulted in his earning livelihood and making a profit in addition, there was also evidence from which the jury could find that what farming operations he was able to carry on were performed through great effort attended with much pain and suffering and the work was done by the assistance of others. In other words, while he was able to do and did perform the work, it was also shown that he could not have prudently done so.

It is insisted that the court erred in overruling defendant's plea in abatement, for the reason that the evidence shows that there was a prior action pending involving the same controversy and cause of action, that is, the original case brought, which was reviewed by this court in the former appeal. It is also claimed that the issues in the two cases were identical; that they both involved the same disability resulting from the same accident; that the same policies were involved and that the disabilities and injuries which are the subject of both actions are of a permanent and fixed character, consisting of a previously fractured and now a stiff and ankylosed and immovable ankle and that a judgment in the original cause would be res adjudicata between the parties.

It is well settled that defendant should not be vexed, oppressed or harrassed by the pendency against him, at the same time, of two actions based on the same cause of action, at the instance of the same plaintiff who has a complete remedy by one of them, the rule being designed to prevent unnecessary or vexatious litigation and to prevent a multiplicity of suits. [State ex rel. Aetna Life Insurance Company v. Knehans, 31 S.W.2d 226; Pocoke v. Peterson, 256 Mo. 501, 165 S.W. 1017.]

We do not think that a judgment in the first case would be res adjudicata of the issues in this case. The policies provided that disability should be considered total whenever insured became so disabled by bodily injury or disease that he is wholly prevented from performing any work or following any occupation or from engaging in any business for remuneration or profit. They provided that defendant would pay plaintiff stipulated monthly benefits during the continuance of his total disability, upon receipt of due proof that insured was totally and presumably permanently disabled; that if due proof was submitted that insured was totally disabled and would be continuously so disabled for life, or if the proof submitted was not conclusive as to the permanency of such disability but establishes that the insured was, and for a period of not less than three consecutive months immediately preceding receipt of proof had been, totally disabled, income payments would be made during the period of his disability, providing the company might demand due proof of the continuance of total disability once each year after such disability had continued for two full years and, upon the failure to furnish such proof, or if insured performed any work or performed any occupation or engaged in any business for remuneration or profit, no further income installments should be payable.

In the trial of the issues under the plea in abatement it was agreed that the injuries that plaintiff had received were fixed and permanent in character but defendant refused to admit or agree that plaintiff was unable to work or that his disability was total, that is, that plaintiff had been permanently disabled from working.

It is quite apparent from a reading of the provisions of the policies that it was not the intention that total disability which might be established for a one year period should also establish the same for a subsequent period. The question involved in each suit was the continued total disability for the period for which recovery was sought. The policies provided that installments should be payable during the continuation of total disability upon proof that plaintiff was presumably totally disabled or if the proof submitted was not conclusive as to the permanency of such disability, but established that the insured was and, for a period of not less than three consecutive months immediately preceding receipt of proof, had been, totally disabled, the company during the time, would waive the payment of premiums and pay a monthly disability benefit, providing that the company might demand each year, after the disability had continued for two years, proof that total disability still continued.

It is true that the petition in both cases alleges that plaintiff was permanently and totally disabled. However, the...