Young v. Metropolitan Life Ins. Co.

• Decision Date: 27 June 1935
• Parties: RICHARD YOUNG, RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, APPELLANT
• Court: Missouri Court of Appeals

84 S.W.2d 1065

229 Mo.App. 823

RICHARD YOUNG, RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, APPELLANT

Court of Appeals of Missouri, Springfield

June 27, 1935

Rehearing denied, July 26, 1935.

Appeal from the Circuit Court of Wayne County.--Hon. E. M. Dearing Judge.

AFFIRMED (upon condition).

Judgment affirmed.

Fordyce White, Mayne & Williams, R. E. Ladriere, Edgar & Banta and LeRoy A. Lincoln for appellant.

The evidence was not sufficient to show that plaintiff was totally and permanently disabled at the date employment ceased and date the insurance terminated. Sibley v. Travelers Ins. Co. (App. Ct. of Ill., 2d Dist.), decided May 10, 1934; Bowen v. Metropolitan Life Ins. Co., 67 S.W. 164 (Tenn.); James Boozer, by his next friend, Eloise Boozer, v. Equitable Life Assurance Society, decided by S.Ct. of North Carolina July 11, 1934. The suit was prematurely brought. Charles F. Adams v. Metropolitan Life Ins. Co., Case No. 5340, decided by this court at its March term, 1934 (not officially reported); Jegglin v. Orr, 29 S.W.2d 721; Hyndley v. Metropolitan Life Ins. Co., 172 S.E. 361, 205 N.C. 780; N. Y. Life Ins. Co. v. Farrell, 63 S.W.2d 520; Penn. Mutual Ins. Co. v. Milton, (Ga.), 127 S.E. 798; Atlas Life Ins. Co. v. Wells (Ark.), 63 S.W.2d 533; Cassens v. Met. Life Ins. Co., 154 So. 522. The judgment was excessive. Allen v. National Life & Accident Insurance Co., 67 S.W.2d 534; Chipley v. National Life & Accident Insurance Co. (K. C.), 67 S.W. 992; Kitchart v. Metropolitan (Dist. Ct. Western Mo.); 1 F.Supp. 719; Puckett v. National Insurance Association, 134 Mo.App. 501; Leon v. Barnsdale Zinc Co., 274 S.W. 699 (Sup.) ; Bonslett v. New York Life Insurance Co., 190 S.W. 870. Defendant's demurrer to plaintiff's petition should have been sustained because the court did not have jurisdiction. Sec. 1938, R. S. Mo. 1929; Langham et al. v. Bogg, 1 Mo. 476; Morris v. Sanders, 85 N.C. 139; Pike v. Farmers Mut. Inc. Co., 251 S.W. 115, 215 Mo.App. 303. It was error to permit doctor to give testimony based on hearsay testimony of others. Hardy-Burlingham Mining Co. v. Baker, 10 F.2d 277; Curry v. Federal Life Insurance Co., 221 Mo.App. 626, l. c. 633; Murphy v. Railway Light, Heat & Power Co., 221 Mo.App. 670, l. c. 673; Schultz v. St. Louis-San Francisco Railway Co., 4 S.W.2d 762; Adolf v. Brown, 255 S.W. 947, 213 Mo.App. 406; Kinsella v. Kinsella, 67 S.W.2d 747; Davis v. Butler, 250 S.W. 126, 198 Ky. 795.

Davis & Damron and L. W. Chapman for respondent.

Plaintiff made a submissible case for the jury on the question of total and permanent disability. Katz v. Union Cent. Life Ins. Co., 44 S.W.2d 250, l. c. 252-3; Hurt v. Equitable Life Ins. Co., 53 S.W.2d 1101; Wall v. Cas. Co., 111 Mo.App. 504; James v. Cas. Co., 113 Mo.App. 622, l. c. 682-9; Fogleson v. Modern B. of A., 121 Mo.App. 548, l. c. 552; Paul v. Missouri State Life, 52 S.W.2d 436, l. c. 441; Kane v. Metropolitan Life Ins. Co., 73 S.W.2d 826; Bullock v. Metropolitan Life Ins. Co., 158 S.E. 185, l. c. 187; Maresh v. Peoria Life Ins. Co., 299 P. 934, l. c. 937. No particular form of proof is required. Hardy v. Mutual Life Ins. Co., 7 S.W.2d 746; Carson v. N. Y. Life Ins. Co. (Minn.), 204 N.W. 209; Provident L. & A. Co. v. Gabriel (Ark.), 57 S.W.2d 824; Hablutzel v. Home Life Ins. Co., 59 S.W.2d 639. Notice of claim was waived by contesting the case on its merits. Laupheimer v. Mass. Mutual Life Ins. Co., 24 S.W.2d 1058; Laupheimer v. N.W. Life Ins. Co., 24 S.W.2d 1062; Dezell v. Casualty Co., 176 Mo. 253. Proof is not a condition precedent to suit, though policy may require it. Sovereign Camp, W. O. W., v. Meek (Ark.), 47 S.W.2d 567; Home Life Ins. Co. v. Keys, 62 S.W.2d 950; Minn. Mutual Life Ins. Co. v. Marshall, 29 F.2d 977-8; Bergholm v. Peoria Life Ins. Co., 284 U.S. 489. Where defendant denied liability, suit could be filed before the expiration of the six months waiting period mentioned in the policy. Phillips v. Protection Ins. Co., 14 Mo. 167; Baker & Lashley v. Phoenix Ins. Co. (Mo.), 221 S.W. 761; McKeon v. Natl. Cas. Co. (Mo), 270 S.W. 707; Landis v. Home Mut. F. & M. Ins. Co., 56 Mo. 591; Martin v. Continental Ins. Co. (Mo.), 256 S.W. 120; Hosmer Bros. v. Ins. Co., 80 Mo.App. 419; Norman v. O. U. C. T., 163 Mo.App. 175, l. c. 185. Defendant's liability relates back to date of disability. Clause 6, Group Policy 368-G, Abs., p. 18; Hablutzel v. Home Life Ins. Co. (N. Y.), 59 S.W.2d 638 (Mo.); Stall v. American Natl. Assn. Co., 70 S.W.2d 78. The sum demanded, exclusive of interest and costs, is the criterion which determines the jurisdiction of the court. Sec. 1938, R. S. Mo. 1929; Vineyard v. Lynch, 86 Mo. 694; Hunt v. Hopkins, 66 Mo. 98, l. c. 102-3; Funk v. Funk, 35 Mo.App. 246, l. c. 252.

BAILEY, J. Allen, P. J., and Smith, J., concur.

OPINION

BAILEY, J.

This is a suit to recover certain benefits provided in the total disability clause contained in a group life insurance policy issued by defendant to the St. Joseph Lead Company by which certain employees of said Lead Company were insured. Plaintiff is a former employee of the Lead Company.

In his petition, after setting out the terms of the policy, plaintiff alleges among other things that on the 10th day of February, 1932, and long prior thereto, while said insurance was in force and at a time when he was employed by the St. Joseph Lead Company, he was afflicted with certain ailments and diseases in the petition described, as a result of which he was and is totally, permanently and continuously disabled and wholly prevented from performing any work for compensation or profit; that he became so disabled before attaining the age of sixty years; that he completed due proof of said disability on June 17, 1932; that defendant rejected said proof and refused to pay plaintiff the amount due under said policy; that there is now due eleven monthly installments of $ 44.92 each, or a total of $ 494.12, which upon demand defendant has refused to pay, for which judgment is prayed.

Defendant filed a demurrer to the petition on the ground that the petition showed upon its face that the trial court had no jurisdiction, the theory being that but one installment was due at the time suit was filed which was below the jurisdiction of the court. This demurrer was overruled. Defendant thereupon filed an answer denying that plaintiff was totally and permanently disabled while employed by the St. Joseph Lead Company and while the insurance was in force; that if he was totally and permanently disabled, such disability arose after plaintiff's employment ceased. The answer further contained a denial that due proof had been made as required by the policy.

Plaintiff filed a reply denying generally the allegations of the answer, and alleged further that since the filing of the suit defendant had become indebted to plaintiff for eight additional installments for which judgment was prayed. Defendant's motion to strike the reply was overruled.

On trial to a jury the issues were found for plaintiff and his damages were assessed at the sum of $ 44.92 each month for ninety-one months, or a total of $ 4,087.72, and judgment was rendered accordingly. Motion for new trial was filed and thereafter plaintiff filed a remittitur of $ 3,279.16, and moved the court to enter judgment in the sum of $ 808.56. The trial court, after setting aside the original judgment, entered judgment in accordance with plaintiff's motion. Defendant has appealed to this court.

Defendant assigns error in the failure of the trial court to sustain its demurrer to the evidence offered at the close of plaintiff's case and again at the close of the whole case, for the following alleged reasons:

"(a) The evidence failed to show that plaintiff was totally and permanently disabled on February 27, 1932, the date his employment with the Lead Company ceased, and the date the insurance as to him terminated.

"(b) The proofs of disability submitted were not sufficient to reasonably convince the Insurance Company that liability for payment under the policy did in fact exist.

"(c) The evidence discloses that such proof of disability as was made was not completed until about October 24th or 25th, 1932, and since monthly payments were to commence six months after receipt of due proof at the home office of the Insurance Company in New York, suit having been filed January 11, 1933, was therefore premature."

The first point made reaches the heart of the case which is, whether or not plaintiff produced any substantial evidence that he was permanently and totally disabled under the terms of the insurance contract, entitling him to the benefits therein provided. The policy itself defines such disability, as follows: "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."

It is conceded that plaintiff remained in the employ of the St Joseph Lead Company until February 27, 1932, at which time he was "laid off," but never again resumed that employment or any other employment. The testimony on the part of plaintiff shows that he was thirty-three years of age at the time of trial and a man of family; that plaintiff had been employed by said Lead Company since 1923, at first shovelling underground, which work he continued to do until August, 1924, at which time a rock fell upon him breaking his right leg and toe and otherwise injuring him; that he remained in the hospital about six weeks and resumed work for the Lead Company in the spring of 1925, at which time there was an open wound in...