54 Mo. App. 468 | Mo. Ct. App. | 1893
— Tlie plaintiff holds a benefit certificate in the defendant order for $1,000. In addition to the insurance afforded its members the defendant undertakes, in consideration of the assessment and dues paid, to grant relief to its aged members, and also to those who have from accident or disease become disabled from following any occupation, provided' such members have complied with the rules and regulation's of the order.
The plaintiff alleges in his petition that on the nineteenth day of January, 1889, by reason of disease and accident he became totally and permanently disabled from following his occupation or any othei; that at the time the disability arose he was a member in good standing of defendant order, and that the defendant after receipt of notice and proof of such disability refused to pay his claim.
The answer admitted the issuance of the certificate, but denied that the plaintiff had complied with the requirements regulating the adjustment of disability claims; denied that the plaintiff was a member of the-defendant order at the time of the institution of the suit; and denied that plaintiff was permanently and totally disabled.
There was a verdict and judgment for the plaintiff for $507.60, from which the defendant has prosecuted this appeal.
Section 6 of the relief fund law reads: “On receipt of the proper notice of disease or accidental disability under section 4 of this article, the supreme councilor shall proceed to investigate the same. If at any time he deems the fact to warrant it, he may appoint one or-more physicians, whose duty it shall be to make a careful examination of the member’s condition and report as to the character and permanency of- the disability. If such report shows a disability of an unquestionably total and permanent disabling charac
Acting under this section the supreme councilor, the supreme recorder and the supreme medical examiner of the defendant appointed Drs. E. J. Lutz and R. J. Stoffel to make an examination of the plaintiff’s condition. Upon the report of these physicians the supreme officers decided adversely to the claim. The plaintiff having failed to appeal to the supreme council as required, it was urged on the trial and is insisted now that such appeal is a condition precedent to the right to maintain the action.
It is clear from the reading of the by-laws that a member before resorting to the courts for aid in the enforcement of his claim must exhaust the remedies provided in the contract, that is, appeal from the decision of the supreme officers in vacation to the supreme
The instruction, that under the law and the evidence the plaintiff could not recover, was properly overruled. The words of the contract are: “Totally and permanently disabled from following his or her usual or other occupation.” What is meant by “total and permanent disability” is explained by the latter clause of section 11 of the relief fund law, which reads: “Such a permanent and disabling sickness as shall render the' member helpless to the extent of permanently preventing the member from following any occupation whereby he or she can obtain a livelihood.” This makes it very clear that what is and what is not a “total disability.” within the meaning of the contract is a relative question, depending upon the attainments of the person disabled. A physical ailment which would render an illiterate laboring man totally unfit to earn a livelihood might not prevent a lawyer from practicing his profession, or take away from him all other chances of earning a living in some other avocation. Therefore, in determining the liability in such a case, the courts must consider both the mental and the physical capabilities of the assured, otherwise such a
The plaintiff’s evidence tended to prove that in the fall of 1889 he became disabled as the result of hernia; that he was operated on three times without securing any relief; that his occupation was that of a day laborer — engaged in digging cellars; that the rupture was of such a character as to unfit him for performing manual labor, and that he had been unable during the four years preceding the trial to'earn a livelihood. His physical condition was well established by the testimony of three reputable physicians, all of whom concurred in the opinion that the plaintiff was permanently incapacitated to perform such labor as required lifting or unusual exertion.- They were also of opinion that this rupture was so large that a truss could not be worn without great danger of serious injury, and that, even though the hernia could be reduced and held in place by a truss, the plaintiff could not perform labor which required much exertion. This evidence tended to prove that the plaintiff was totally and permanently incapacitated to follow his usual avocation, for the use of a pick, spade or shovel, certainly requires unusual exertion.
In determining whether the plaintiff was ■ disabled to such an extent as to prevent him from pursuing some other avocation in which he could earn a livelihood, his former occupation, his education and business experience, his natural abilities, and his age must be considered. The plaintiff’s evidence bearing on this branch of the case tended to show that the plaintiff was fifty-eight years' old; that he was enfeebled and weakened by sickness to such an extent that he could walk only a few blocks at a time; that he could neither
There was evidence that the plaintiff had failed to pay his dues and assessments after the presentation of his claim. The defendant asked the court to instruct the jury that, to entitle the plaintiff to recover, it must appear that he was a member in good standing at the time the suit was instituted. The court struck out the words italicized, and inserted in lieu thereof “at the time of making his claim on defendant.” This left the instruction more favorable to the defendant than the law warranted. If the plaintiff was a member in good standing at the time he became disabled he is entitled to recover.
The defendant asked the court to instruct as follows:
“5. Even though from the evidence the jury may believe that the plaintiff, at the time of making his claim upon defendant, was or is now by reason of hernia totally and permanently disabled from pursuing any occupation for a livelihood, yet, if they further believe and find that the hernia was then or is now reducible with a truss (without serious injury or inconvenience to the plaintiff), and that a suitable truss worn by him would enable him to pursue an occupation for a livelihood, and he nevertheless refused and refuses to wear one; then and in that event the jury must find a verdict for the defendant.” The court added the clause in parenthesis of which the defendant complained. There was evidence tending to prove that the hernia was so large that to wear a truss would endanger the plaintiff’s life. The plaintiff testified*475 that the truss which he attempted to wear hurt him so much that he could not wear it. This proof warranted the modification of the instruction. The plaintiff ought not to be required to endanger his life, or render his existence intolerable, in order to save to the defen - ant order a few hundred dollars.
The admission of the testimony of Dr. Dalton touching the physical condition of the plaintiff at the date of the trial was competent and relevant. The evidence bore on the question of the permanency of the plaintiff’s disability, and directly tended to corroborate the testimony of the physicians who made the original examinations.
There was no error in excluding the written report of Dr. Lutz in reference to the physical condition of the plaintiff at the time he made the examination. The only • legitimate object or purpose of such an examination was to furnish information to the defendant to control its action in admitting or rejecting the claim in the first instance, and not to produce. independent and competent proof of the plaintiff’s condition in legal proceedings. Especially was the action of the court justifiable, since it appears that Dr. Lutz was present in court ready to testify, and that he did testify, as to the result of his examination.
The other errors assigned we do not deem it necessary to discuss, as they would not affect the result. Judgment affirmed.