Wood v. Metropolitan Life Ins. Co.

• Decision Date: 05 May 1942
• Docket Number: No. 26054.,26054.
• Citation: 161 S.W.2d 737
• Parties: WOOD v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

161 S.W.2d 737

WOOD v. METROPOLITAN LIFE INS. CO.

No. 26054.

St. Louis Court of Appeals. Missouri.

May 5, 1942.

Appeal from St. Louis Circuit Court; William S. Connor, Judge.

"Not to be reported in State Reports."

Suit by Arthur Wood against the Metropolitan Life Insurance Company to recover benefits for total and permanent disability under a group policy, wherein the action was revived after the death of the plaintiff in the name of Herthel Wood, as administratrix of the plaintiff's estate. Judgment for the plaintiff, and the defendant appeals.

Judgment affirmed.

Fordyce, White, Mayne, Williams & Hartman and R. E. LaDriere, all of St. Louis (Harry Cole Bates, of New York City, of counsel), for appellant.

Everett Hullverson and Gregg W. Keegan, both of St. Louis, for respondent.

HUGHES, Presiding Judge.

Suit was commenced on July 6, 1939, by Arthur Wood, to recover benefits then due for total and permanent disability under the terms of group policy No. 1347—G, issued by the defendant, and covering the employees of the Marquette Cement Manufacturing Company. After the commencement of the suit the plaintiff died and the action was revived in the name of Herthel Wood, as administratrix of his estate. The case being tried in the circuit court, the plaintiff obtained judgment for the full amount sued for, to-wit, $108, and the case comes to this Court on appeal by the defendant.

The policy contained the following clause:

"Total and Permanent Disability Benefits.

"Any employee shall be considered as totally and permanently disabled who furnishes due proof that, as the result of bodily injury suffered or disease contracted prior to his sixtieth birthday, he has become, while insured hereunder, permanently, continuously, and wholly prevented thereby from performing any work for compensation or profit.

"Six months after receipt of due proof of such disability, the Metropolitan Life Insurance Company will pay to such employee, in lieu of the payment at death of the said insurance on the life of such employee, equal monthly installments based on the amount of insurance in force on such employee at the date of receipt of proof of such disability as shown in the following table."

The amended petition alleged that on and prior to the 19th day of June, 1931, while said policy of insurance was in full force and effect, and while plaintiff's deceased was in the employ of the Marquette Cement Manufacturing Company and before plaintiff's deceased had attained the age of sixty years, plaintiff's deceased became and was totally and permanently disabled, by reason of having contracted an occupational disease known as pneumoconiosis, bronchitis, and other injuries, diseases and conditions, and that because of the aforementioned and aforesaid disabilities, plaintiff's deceased was, and had been since the above date, wholly, permanently and continuously disabled and prevented from pursuing any or all gainful occupations, and that plaintiff's deceased died as a result of the diseases causing his disability.

The answer was a general denial, followed by allegations that Arthur Wood left the employ of the Cement Company on or about November 4, 1933, at which time his insurance terminated, and that he was not at that time, or prior thereto, or since that time, totally and permanently disabled; and further that no notice or proof of claim of total and permanent disability was received within a reasonable time after such claimed disability arose.

Appellant contends that its demurrer at the close of plaintiff's evidence and again at the close of all of the evidence should have been given. Although this calls for a review of the evidence, yet we must recognize the well established rule that in passing upon defendant's demurrer, both the trial court and this Court on appeal must view the evidence in a light most favorable to plaintiff, and indulge every reasonable inference in plaintiff's favor. Plaintiff's evidence showed the following:

Herthel Wood, the wife of Arthur Wood, testified that she had been called down to the Cement Plant several times; that her husband would get bad spells, could hardly breathe, and would drop over on the machine, and she would have to take him home; he would be gasping and couldn't get his breath.

William Halley testified that he worked with Arthur Wood from September, 1931, to September, 1932; that he was Wood's "buddy"; they worked together on the barges and they would go down to the barge and open up, open the two end doors, and start up the machinery; that Wood helped him get it started and right away after it started and he (Wood) started to breathe the dust he would start coughing and wheezing, and after he was in a couple of hours and after everything was going good he would tell Wood to go out on top and get air; that Wood would go out and stay out two or three or four hours and sleep; that he (witness) would take the work and go on with it because Wood wasn't able to do it.

Mary Ross, a neighbor, testified that she became acquainted with Arthur Wood in 1932; that the first time she saw him he was in bed, sitting up and gasping for breath; that he couldn't lie down, would breathe very hard and coughed an awful lot.

Mrs. Gus Bowenschulte, testified that she first met Arthur Wood in the early part of 1931, and saw him off and on from that time until his death; that in November, 1933, he looked "fierce"; that he had mean coughing spells lasting fifteen or twenty minutes and then coughed steady, was pretty near dead, and he was gasping and pumping.

Ben Juley testified that he worked at the Cement Plant from June, 1932, to November, 1933; that Arthur Wood couldn't get around very well at that time and when on machine packing he would "pass out" and witness would have to help him off the machine; in other words, Arthur Wood would be sitting at the machine packing cement and would faint or pass out, and he (witness) helped him off the machine and laid him down, got some water or put wet cloths on his head and revived him, and would let him lie around for a couple of hours until he would be able to get up again; that happened around ten or twelve times; and generally he would go home after he would be able to walk around; that he didn't see him doing any hard manual labor because he wasn't able to.

The City Hospital record showed that Arthur Wood was in the hospital for about two weeks in 1932; the final diagnosis at that time was acute bronchitis. The Wasserman and Kahn tests, which is a test for syphilis, was positive. On December 28, 1932, the roentgenographic examination report showed marked increase in perinbronchial markings, especially in lower lobes; few irregular infiltrations in the base of the left lung; condition probably due to an acute respiratory infection, possibly beginning bronchopneumonia.

We have omitted the testimony of Dr. Milton Smith, who was called by plaintiff as a witness. Dr. Smith never saw Arthur Wood until October, 1938, and his testimony was based on Wood's condition at that time and the history of his condition prior thereto.

Defendant offered testimony contradictory of plaintiff's evidence, but as hereinabove indicated, in determining whether defendant's demurrer to the evidence should have been given, we are restricted to plaintiff's evidence.

We think clearly a submissible case was made out by plaintiff as to whether Arthur Wood was totally and permanently disabled while in the employ of...