Thomas v. Met. Life Ins. Co.

• Decision Date: 12 November 1935
• Docket Number: No. 18416.,18416.
• Parties: MILO THOMAS, RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

89 S.W.2d 590

MILO THOMAS, RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT.

No. 18416.

Kansas City Court of Appeals. Missouri.

November 12, 1935.

Appeal from Circuit Court of Adair County. — Hon. Harry S. Rouse, Judge.

AFFIRMED.

E.M. Jayne, John Campbell and A.D. Campbell for respondent.

Murrell & Murrell, Meservey, Michaels, Blackmar, Newkirk & Eager, Robert E. Coleberd and LeRoy A. Lincoln for appellant.

TRIMBLE, J.

Plaintiff, as the holder of a policy of life insurance issued by the defendant, to which policy was attached a "rider" or supplemental contract, brought suit thereon, alleging that the insurance company had therein agreed to pay insured the sum of $10 per month "during such period of time as he should be disabled as the result of bodily injury occurring and originating after the issuance of said policy, such payments to continue at said rate of payment during the continuance of such disability."

The petition, filed April 19, 1934, alleged that on September 7, 1932, he accidentally received an injury while working as a hired man of the Adair Lumber Company and performing his duties as such employee, by running a wooden splinter into the flesh and against the bone of the second finger of his right hand, from which infection ensued, and since said time he has been, and now is, unable to perform his duties as such hired man; that there had accrued and was due to him on April 7, 1934, the sum of $190, being $10 per month during the continuance of said disability up to said April 7, 1934; that defendant wilfully and vexatiously refused to pay same, by reason of which plaintiff has been forced to employ attorneys to prosecute this action, a reasonable fee for which is $125. The petition further alleged that said "rider" or provision further agreed that, during the continuance of disability, the company would waive the payment of premiums on said policy but, nevertheless, defendant refused to waive said premiums, and on January 14, 1933, collected $33.34, the amount which otherwise would have been due had insured had been disabled as set forth.

Wherefore, judgment was prayed for said $190 with ten per cent interest as damages for vexatious refusal to pay, and for $33.34, the amount of premiums so collected as stated above and said attorneys' fee of $125.

The answer, while denying in formal terms that it issued the contract of insurance alleged and described, nevertheless alleged that it issued a policy in the amount and of the specific number alleged in the petition, and asserted that by a supplementary agreement, or rider, attached thereto, it agreed that if insured became "totally and permanently disabled as the result of bodily injury or disease occurring and originating after the issuance of said policy, so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit, and that such disability had already continued uninterruptedly for a period of at least three months, it would, during the continuance of such disability, waive the payment of each premium falling due, and pay to the insured, ... a monthly income of $10, provided further that such premium waiver should begin as of the anniversary of such policy next succeeding the date of the commencement of such disability; ... that if the insured should be able to perform any work or engage in any business whatsoever for compensation or profit the monthly income therein provided should immediately cease and all premiums thereafter falling due should be payable according to the terms of said policy and of said supplementary contract.

The answer then denied that the plaintiff "has been or is, totally and permanently disabled so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit" and stated that he has not been and is not so disabled; and denied that plaintiff was or has been or is disabled to the extent and degree required and defined in and by the terms of the aforesaid supplementary contract.

Without regard to whether a reply should have been filed to the answer, no reply was in fact filed, but the case was tried as if one was filed.

On September 4, 1934, said trial was had, and the jury returned a verdict for plaintiff in the sum of $190 for the disability claimed up to April 7, 1934, for $66.68 due for return of premiums wrongfully collected, for $19 damages for vexatious delay, and $125 attorneys' fee, making a total of $400.68, for which judgment was rendered, and defendant has appealed.

The evidence in plaintiff's behalf is that on the seventh day of September, 1932, he was working for the Adair Lumber Company, in Kirksville, Missouri, engaged in piling lumber; and in slipping a six-by-six-inch lumber about ten feet long, into its place on the pile, a splinter was run into the middle finger of his right hand. In a few days thereafter it was badly swollen and his hand became infected and swelled so that his fingers stood out from each other and the arm swelled to his shoulder. The doctor lanced it a number of times, and plaintiff was bedfast from September 20th until sometime in January. His finger and hand have been stiff ever since. Plaintiff has been unable to work although he tried for a day and a half...