Volz v. Travelers Ins. Co.

• Decision Date: 04 May 1942
• Docket Number: No. 20052.,20052.
• Citation: 161 S.W.2d 985
• Parties: VOLZ v. TRAVELERS INS. CO.
• Court: Missouri Court of Appeals

161 S.W.2d 985

VOLZ v. TRAVELERS INS. CO.

No. 20052.

Kansas City Court of Appeals. Missouri.

May 4, 1942.

Appeal from Circuit Court, Sixteenth Circuit, Jackson County; Marion D. Waltner, Judge.

Not to be published in State Reports.

Action by Ludwig Christian Volz against Travelers Insurance Company to recover total and permanent disability benefits under the terms of a certificate issued by defendant to plaintiff, pursuant to the terms of a group life policy issued by defendant to plaintiff's employer. From an adverse judgment, defendant appeals.

Judgment affirmed on condition of the remittitur of amount allowed for statutory penalty and attorney's fee on account of vexatious refusal to pay and otherwise reversed and cause remanded.

Mosman, Rogers & Bell, of Kansas City, for appellant.

C. R. Leslie, of Independence, and Walter A. Raymond, of Kansas City, for respondent.

BOYER, Commissioner.

In the above entitled case the respondent (plaintiff below) sought recovery for alleged total disability for the balance of his life under the terms of a certificate issued by the defendant company pursuant to the terms and conditions of a group life policy which had been issued to the Corn Products Refining Company, the employer of plaintiff. Judgment was demanded for the amount of the certificate with interest, statutory penalty, and attorneys' fees, all in the total sum of $2,950.

The answer admits that plaintiff was an employee of the Corn Products Company and that defendant issued to said company a group life policy and in connection therewith plaintiff was issued a certificate in accordance with the terms and conditions of said policy, which said certificate by its terms was increased to the sum of $2,000, and denies every other allegation in the petition.

Provisions of the group policy and of the certificate prescribing the conditions upon which coverage would be afforded on account of the employee becoming totally and permanently disabled by bodily injury or disease during the period of his employment, and which disability would continuously and wholly prevent the employee for life from engaging in any occupation or employment for wage or profit, are set forth in the answer. It was alleged that plaintiff did not furnish the company due proof that while insured under the policy he had become wholly disabled by bodily injury or disease and would be permanently, continuously and wholly prevented thereby for life from engaging in any employment for wage or profit; that the insurance afforded under the policy ceased to be in force and effect upon the termination of the employment on April 10, 1939, and that no proof of disability was furnished while the plaintiff was insured under said policy and said insurance was terminated long before any proofs of disability were furnished.

The reply was a general denial.

The trial covered a period of four days and resulted in a prolonged and voluminous record of evidence, the larger part of which consists of medical and expert testimony relative to the nature and character of plaintiff's alleged injuries and the probability of their origin and duration. It evidences a battle royal between doctors entertaining divergent views. At the close of plaintiff's case and at the close of all the evidence, defendant offered peremptory instructions to find for it which were refused. The case was submitted to the jury upon three instructions given at the request of plaintiff, and three instructions given by the court upon its own motion. Instructions offered by defendant were refused.

Nine jurors returned a verdict for plaintiff in the sum of $2,000, with interest from the date of suit, $200 for vexatious delay, and $750 attorneys' fees. In proper time and manner defendant perfected its appeal and presents three assignments of error for reversal. First, the refusal of the peremptory instructions in the nature of demurrers to the evidence. Second, error in giving plaintiff's instruction 3, authorizing the allowance of penalty and attorneys' fees, and the refusal of defendant's instruction C, withdrawing those subjects from the consideration of the jury. Third, error in refusing to give defendant's offered instruction G, which undertook to tell the jury the elements necessary to be found by it as a predicate for assessing the statutory penalty.

Counsel are not in accord relative to the proof. The statement of the evidence now made is the result of reading the entire record and is deemed sufficient for consideration and determination of the points raised on appeal.

Plaintiff testified that he was 57 years of age; that he was a naturalized citizen, a resident of Clay County for 15 or 16 years, and had been employed by the Corn Products Company for 14 years, and was employed in general labor work in the feed department. Prior to the alleged injury which is the basis of the suit, plaintiff sustained several other injuries beginning in 1936. He said that during that year while on vacation for two weeks, he was engaged in digging a well and that a bucket fell on his side; that he suffered from that injury and laid off seven weeks when he returned to work. In the Fall of the same year he said: "I was handling a big sledge hammer and I slipped and twisted my back." He was off from work two weeks and returned to his job. In January, 1937, "I slipped and sprained my ankle, I slipped in a conveyor"; that he then laid off five weeks; that he was hurt again on the 12th day of January, 1939. He was asked what occurred on that date, and stated that he and another man named Vernon Green were working on the floor and that he was shoveling feed in the magnet belt and the other man was washing the floor in an adjoining room; that while he was shoveling feed he got dizzy on account of sulphur and gas and slipped and lost his balance; that he fell, hurting his back on the concrete floor, and "sat down on my tail bone, whatever you call it"; he got up and walked around, felt pain in the lower part of his back, and reported it to the foreman; that he remained at work the balance of the day, but did not feel very good; his back hurt "pretty bad"; that he went home and that night his wife rubbed his back with alcohol and put cloths on his spine; they were pinned on and he kept them on until he went to a doctor; he could not get any rest and went to a doctor; he returned to work the next day and felt "awfully miserable"; he stayed on the job and continued to wear his belt; it was changed every night and he was rubbed with liniment; he continued to work until the 28th day of January, when he said "I could not go any more. * * * I went to the company doctor"; he informed the company that he was laying off; he said he went to the doctor on his own account, and would not say that the company sent him there; this doctor prescribed some kind of liniment and informed him that if his back continued to pain him to come back and he would strap it up, which he did later. After January 28, he was off work four weeks, and stated that the doctor sent him back to work; that he worked two weeks, at the end of which time he got down in bed; he was then off work two weeks more, during which time he obtained a back support, a corset-like article, which he wore and continued to wear until the time of the trial; at the end of two weeks he went back to work and remained at work two weeks and one day up to the 10th of April, at which time he said that he could not get up, was worn out, and could not sleep; the pain in his back was bad, and he could not work; that he had his wife send word to the company by a man in the neighborhood that he would not be there, and that he had not gone to work since that time; that he made a claim for compensation against his employer which was tried, determined and compromised.

Dr. Hess and Dr. Davis were two of his doctors and witnesses in the compensation case; they had some X-rays made; that in October or November, 1939, he first went to the Travelers Insurance Company and talked to a Mr. Kline "about this insurance, that disability insurance"; that Mr. Kline sent him back to the Corn Products Company for blanks; he did not ask Mr. Kline for any blanks at that time; he went to see some one at the Corn Products Company who said he did not know what was wanted, and plaintiff went back to see Mr. Kline, who called the company and asked some questions; that Mr. Kline promised to send him some blanks and did not do so until January or February; when he got these blanks he went to Dr. Hendren; "they told me to go to some honorable doctor and have an X-ray made and that is what I did"; he also consulted Dr. Love; these consultations were in connection with the preparation of his proof to be filed with the company; the reports of the doctors and the proof of claim were filed about May 24, 1940; that he was later examined by Dr. Dickson about the first of July. He was asked what kind of work he had been doing since the 10th of April, 1939, and he answered: "I do not have any job at all, I do not do any work except around home and you might say loafing around." He stated that he could do some work around his fruit trees, but could not do any work of stooping over and lifting; that he could not use a shovel or do any digging; that he could not lie on his back at all; that it hurts too bad; that he had difficulty in turning over; that he drives his car to Independence or Kansas City and that is all he could stand; that he could not drive a truck, it was too rough riding; that he was taking electric treatments from Dr. Love and home treatments with alcohol and other medicine, some kind of liniment, and wears his belt. His certificate of insurance was identified and offered in evidence.

On cross examination, plaintiff testified that prior to his hearing before the Compensation Commission he had consulted Dr. Hibbard and Dr. Hess, and at the second hearing before the Commission he had gone to Dr....