187 Mo. App. 167 | Mo. Ct. App. | 1915
This is an action upon the health feature of a policy of accident and health insurance. It provided for the payment of a monthly indemnity
The policy was issued April 7, 1913. The insured was ill, within the terms of the policy, from July 10, 1913, to September 25, 1913, a period of two-and-one-half months.
The policy made the application a part of the contract, and was based upon the truth of certain statements made as warranties therein to the effect that insured was in sound bodily health and had not received medical attention during the five years preceding the issuance of the policy, and had never had, during said five years, any trouble from gall stones or bladder disease. It also provided that written notice of any illness must be given to the company at its home office, or to the local agent in the town of insured’s residence, within ten days from the date of beginning of disability from illness; and if the insured failed to comply strictly with said notice requirements then all rights under the policy should be forfeited.
The answer pleaded a breach of the two warranties above stated by alleging that for weeks and months prior to his application, and within five years prior thereto, insured was not in sound bodily health but was suffering from a disease of the bladder or disease of gall stones and under the care of a physician for those bodily illnesses. It also pleaded a failure to give written notice within ten days from the date of the beginning of disability. Lastly, the answer pleaded a release from all liability on the policy for all disability which might arise in the future or had
The reply denied generally, and then pleaded that even if it were true that the said warranties were breached, the defendant had waived same by accepting, and receiving the full monthly premiums on said policy after knowledge of the fact that insured was afflicted with said diseases and did not cancel or undertake to cancel the policy until after claim for the illness now in issue was made, and is now estopped from setting-up a breach of warranty in the case. The reply to the second defense namely, failure to give notice within ten days, was likewise a general denial, and a plea that even if the facts were true as set out in said second defense, defendant waived all defense it might have had by reason thereof, but had denied all liability whatever under the policy on the ground of the breaches of warranty aforesaid. The third defense, that of a release, was likewise denied generally, and the plea was made that the pretended release was without consideration and that after the execution of the .alleged release the defendant continued to exact of, accept, and receive, the full amount of premiums designated and agreed upon in the policy, and thereby waived said defense of release if it had otherwise constituted a defense.
The case was tried without a jury and the court found for plaintiff in the sum. of $200, which is at the rate of $80 per month for two-and-one-half months, the rate provided in the policy for total disability. Defendant has appealed.
With reference to the first defense, that of a breach of the warranties that insured had not within five years prior to the date of the policy been disabled or received medical or surgical attention, and had not had and was not suffering with gall stones or bladder trouble, we do not think there was conclusive evidence
The second defense relied upon is that the insured failed to give written notice within ten days from the date of the beginning of disability from illness. Plain-' tiff contends this was waived. The disposition of the case on this point requires a short statement of the facts.
It seems that prior to the illness for which this suit is brought plaintiff was disabled from sickness; that plaintiff failed to give ten days written notice of the beginning of that sickness, but nevertheless the company waived notice and settled therefor paying plaintiff for two weeks and a half. The second sickness, within the terms of the policy began, as stated, on July 10. Plaintiff was confined to his bed and was taken to a hospital in St. Louis where an operation was performed on him for gall stones and bladder trouble, and he did not get up until September 25. On
Upon receipt of these blanks plaintiff went to the trouble and expense of having them made out and sent •to the company about the 14th of October. On the 20th of October, the company replied saying: “After consulting with the claim department I find that on July 13, 1913, that you were paid a claim for $45 on account of a disability, part of which was due to some
Now, upon the question whether this court can say as a matter of law that no waiver of the notice has occurred, we must remember that if there is evidence from which waiver can be inferred, then we cannot interfere with the trial court’s judgment on that question. In addition to this, in order for a forfeiture to be enforced it must not only clearly appear that the right to a forfeiture existed but also that such right was exercised or insisted upon. And since there is a difference between the status and situation of the parties to a contract of insurance, the contracts, acts, and declarations of the insurer are construed in favor of rather than against the insured when such construction is possible. With these preliminary observations in mind, let us see whether or not an inference can be drawn from the evidence that the failure to give the ten days written notice was waived. For if such inference can be found, then the trial court’s finding must be respected.
In the first place, the plaintiff was dealing with a company that had theretofore waived the requirement of such notice and had paid him for a former sickness without that feature of the contract being complied with. This would not be of much importance by itself, but taken in connection with what the com
In addition to this, there was evidence from defendant’s side of the case that plaintiff had been a collector in his locality for the defendant and had been a “pusher” for the company, that is to say, a help and an aid to it in extending its business there, and that it did not want to lightly alienate his good will.
Taking all these things into consideration, we think there is enough in the evidence to justify a reasonable inference that the company did, as a fact, waive the want of notice. There being room for such infer
The third defense pleaded is- that plaintiff has released defendant, and to this plaintiff replied that such pretended release was without consideration. On this branch of the case, the facts are that, as hereinbefore stated, previous to the sickness on which this suit is based, plaintiff was disabled by sickness for two-' and-one-half weeks and presented a claim for it and the same was paid. This sickness resulted from an attack of bladder trouble and gall stones as did' the second sickness. The receipt which plaintiff was required to sign, and which he did sign, when this first claim was paid, read as follows: “For and in consideration of the sum- of forty-five and thirty-three one-hundredths dollars, to me in hand paid by the Inter-Ocean Life and Casualty Company, the receipt whereof is hereby acknowledged, I agree that the above shall be in full discharge of all claims which I now have or may hereafter have, on account of any disability, resulting directly or indirectly, wholly or partially, from, or any infirmity due to diseases due to gall bladder or any of digestive organs. Thomas M. Bolton, Claimant.”
After executing this receipt, plaintiff continued to pay, and the defendant to receive, the full premium of $1.50 per month as before and continued to do so up to the time defendant cancelled the policy in its letter of October 20th, which was after be had recovered from the second sickness. This receipt was signed before the second sickness began. Plaintiff got up from the first sickness and was able to go down to his store and attend to his various duties. The sickness required by the policy was such illness as would necessarily and continuously confine him in the house and for which he would be regularly visited by .a legally qualified physician. Afterwards, plaintiff was again taken
It must be borne in mind that the feature of the policy now in question is health insurance, not accident insurance. The- insurance provided for in this feature of the contract was disability from sickness, and the second disability from the second attack of sickness was a different disability from the first, and furnished grounds for another and different claim against the company. The disabilities were different although they were caused by the same disease. When plaintiff settled with defendant and signed the above receipt he had no means of knowing that he would again take down with another attack. Within the meaning of the policy the second attack was another sickness and another disability though the disease was the same. It is not like a case of accident insurance, for there the plaintiff seeks indemnity for results arising from a certain occurrence, namely, an accident. In such case, the results are all caused by an event that has transpired before he settles. Whatever loss flows therefrom must be claimed and recovered as one loss. Since the accident caused all the loss, it constitutes but one cause of action, and a cause of action cannot be split. Hence, if a plaintiff has met with an accident and settles for that accident, he cannot after-wards sue for subsequent indemnity of similar nature on account of that same accident. But in health insurance each disability furnishes a new ground for a claim, provided it is produced and arises after and not before a former claim for disability is made. When plaintiff settled for the first sickness that was a settlement of that cause’ of action, and when another attack seized and disabled him that was another and a different cause of action. It was not a result growing out of an event for which he had fully settled. The
The premiums collected after the first disability remained the same as before. No change nor reduction was made therein because the policy no longer covered disability from that particular disease. Nor was plaintiff told that the policy was not to be carried covering all diseases as before. The defendant had not paid more than it owed. There was, therefore, no consideration for the release as to other disabilities arising from diseases to the gall bladder or digestive organs.
It is urged that the court erred in excluding the testimony of Dr. Crews, plaintiff’s family physician, offered by defendant to show that the first sickness of plaintiff was a disease of the gall bladder. Inasmuch as plaintiff had sent defendant this doctor’s report on
It follows from the foregoing that the judgment should be affirmed, and it is so ordered.