Whited v. Guarantee Trust Life Ins. Co.

• Decision Date: 05 March 1951
• Docket Number: No. 21517,21517
• Citation: 237 S.W.2d 915
• Parties: WHITED v. GUARANTEE TRUST LIFE INS. CO.
• Court: Missouri Court of Appeals

Page 915

237 S.W.2d 915

WHITED v. GUARANTEE TRUST LIFE INS. CO.

No. 21517.

Kansas City Court of Appeals, Missouri.

March 5, 1951.

Edward L. Scheufler, Maurice E. Benson, Kansas City, for appellant.

R. H. Musser, Plattsburg, Pross T. Cross, Gerald Cross, Lathrop, for respondent.

SPERRY, Commissioner.

Defendant, a health and accident insurance company, appeals from a judgment in favor of plaintiff in the amount of $1350. The judgment is the result of a suit instituted by plaintiff, based on a sick and accident policy issued by defendant to him.

Plaintiff became totally disabled by reason of partial paralysis, and partial loss of sight, on December 24, 1948. On December 25, he entered the United States Veteran's Hospital, at Wadsworth, and was a patient there until May 6, 1949. He was discharged for the stated reason that further treatment would not be especially beneficial. Plaintiff's theory of recovery is that he was injured in a truck accident, on December 24, 1948, when he suffered a blow on the head, breaking a blood vessel in the brain, resulting in a brain hemorrhage. Under that theory he would be entitled to recover $1350 at this time and, if disability from the same cause continued, he would hereafter be entitled to further benefits not to exceed a total of 60 months at $100 per month.

Defendant's position is that plaintiff suffered from high blood pressure, prior to the time of the alleged injury on December 24 and that, as a result of disease, he suffered a cerebral thrombosis; that his disability was caused by disease, not accident. Under defendant's theory plaintiff is entitled to recover $1350, the amount of the judgment, which would end its liability on the policy.

The policy provided for benefits based on accidental injury, at the rate of $100 per month, for a maximum of 60 months, plus $50 per month for 3 months, for necessary hospitalization. It also provided benefits, based on sickness, at the rate of $100 per month for a period not exceeding 12 months, plus $50 per month for a period of not more than 3 months, if insured was hospitalized during such period.

By instructions G and F, given at the request of defendant, the jury was told that the policy was in full force and effect during the period above-mentioned; that, in any case, plaintiff was entitled to a judgment in the amount of $100 per month for 12 months, plus $50 per month for 3 months; and that: '* * * the sole issue for your determination is whether such total disability came into being by reason of accident or by reason of sickness.'

Defendant urges, as a ground for reversal, under Point II of the brief, the failure of the trial court to sustain its motion for a directed verdict at the close of the evidence for the reason that the evidence showed that plaintiff's disability did not require medical attention, and plaintiff did not actually receive such attention. It is true that the policy does require, as a condition of recovery, that plaintiff be wholly and continuously disabled and require 'regular medical attention.' That requirement attaches to the provisions for benefits for disability due to accident as well as to those due to sickness. Defendant's counsel stated, during the trial, that defendant had repeatedly offered to pay plaintiff the benefits provided under the health provisions of the policy. Defendant thereby waived this provision of the policy as to sickness, and never intended to rely thereon until it brought up this appeal.

Defendant caused to be introduced into evidence the United States Veteran's Hospital records relating to plaintiff. Those records disclosed that plaintiff received regular medical attention so long as he remained at the hospital, and that he was discharged because his condition was such that further hospitalization would be unprofitable to him. However, defendant formally read into the record an admission that plaintiff was, and remained, totally disabled during the entire period for which recovery was sought; and evidence to that effect, if not conclusive, was strong, convincing and undisputed. The evidence failed to show that plaintiff did not require medical attention, only that the hospital records indicated that his condition was such that hospitalization would not be beneficial because of the nature and extent of his disability.

Defendant asked no instruction on the point, nor did it raise any such issue, directly, in the pleadings.

The rule is that when a policy contains a general liability clause, such as appears here, followed by a clause providing stated exceptions from the operation of the general clause, the burden is on defendant to affirmatively plead and prove such an exception, not on plaintiff to plead or prove strict compliance therewith. Christy v Great Northern Life Insurance Company, 238 Mo.App. 525, 181 S.W.2d 663, 669, 670. This burden defendant did not assume.

Defendant also complains, in Point III of its brief, of the failure of the court to sustain its motion for directed verdict on the grounds that there was no evidence of compliance with the policy provision requiring written notice of injury, filing of proofs of loss, or of waiver of those requirements. Defendant made no such defense in the trial court. The evidence is silent as to notice and proofs of loss. However, what has been heretofore said as to defendant's contention under its Point II is equally applicable here. Both contentions are disallowed for the reasons stated.

Defendant abandoned any defense based on either of these propositions when it caused to be given instructions G and F, above-mentioned, thereby abandoning all defenses and possible issues except that as to whether plaintiff's condition was due to injury or to disease; but defendant contends that it had the right to rely on such defenses at the time it requested a directed verdict. Such defenses were not available, under the state of the records, at that time, and we so rule.

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