Summary
In Hayes v. Equitable Life Assur. Soc. of the United States, 235 Mo. App. 1261, 150 S.W.2d 1113, we approved of and followed the tenor and effect of said Butler case, supra.
Summary of this case from Nick v. Travelers Ins. Co.Opinion
April 7, 1941.
1. — Insurance — Group Policy — Cancellation — Notice. Where original group insurance policy containing total and permanent disability provision which was cancelled by mutual consent of employer and insurer and a new group policy was issued having no total or permanent disability provision, original group policy continued in force as to disabled employee who had received no notice of cancellation of original policy and paid his premiums in ignorance thereof.
2. — Insurance — Proofs of Loss. Where circumstances and conditions concerning plaintiff's disability show that it was impossible to give notice thereof or furnish proof of loss within time specified in policy of insurance, its giving will be excused, and it is sufficient if given or furnished within a reasonable time after injury first takes on a serious aspect.
3. — Contracts. The general rule is that persons may enter into contracts as they please, and when a party, by his own contract, creates a charge or duty upon himself, he is bound to make it good, because he might have provided against any accident or the like by his contract.
4. — Insurance — Contract — Construction. In cases requiring notice or proof of loss, concerning disability or death, a reasonable interpretation of the contract will be given and unless there is an expressed condition in policy requiring a different interpretation, courts will not presume parties intended insured to do something impossible, under circumstances, in view of character of stipulation.
5. — Insurance — Contract — Construction. Where group policy provided for due proof of total and permanent disability within one year after happening of disability insured, while not required to make proof of disability prior to discovery thereof, should not be given a whole year thereafter to make proof, but should make the same within a reasonable time after disability was discovered.
6. — Insurance — Contract — Proof of Loss. Ordinarily the question as to whether notice or proof of loss was given or made under terms of policy within a reasonable time would be one for the jury, but where all reasonable persons would conclude that notice or proof was not given within that time it becomes one of law for the court.
7. — Insurance — Contract — Construction — Words and Phrases. Under policies of insurance providing that "immediate" notice shall be given to insurer of disability or death, the word "immediate" is construed to mean within a reasonable time.
8. — Insurance — Contract. What is a reasonable time with respect to notice or proof of loss under insurance policy depends upon the circumstances of the particular case.
9. — Insurance — Contract — Proof of Loss — Waiver. Where insured failed to prove date of discovery of his total and permanent disability, and disablement which he suffered had existed for more than a year, and might have been discovered more than three months before insurer denied liability, time for furnishing proofs under terms of group policy requiring same to be made within one year from date of its commencement had expired, as a matter of law, when insurer denied liability and there was no waiver of proofs on insurer's part in denying liability when it did.
10. — Insurance — Contract — Proof of Loss — Waiver — Burden of Proof — Demurrer. Where insured's disability may have been known for more than a year prior to date he contends insurer waived proof of loss, the burden was upon insured to show that he furnished proof in time or that it was waived and having failed so to do insurer's instruction in nature of demurrer to evidence should have been given.
11. — Evidence — Hearsay — Opinion. Where physician had not examined insured until several months after suffering disability, the court erred in permitting him to testify to matters not in evidence, based on hearsay and hospital records, and to express an opinion that insured's disability commenced on a certain date, when none of hospital records was introduced in evidence.
12. — Evidence. There was no reversible error in action of trial court in excluding testimony of other employees under group policy that they had received new certificates after cancellation of original policy and were aware of change in insurance plan.
13. — Instructions. In a suit upon a total and permanent disability provision of group policy providing for benefits if insured by reason of disability will presumably be continuously prevented for life from engaging in any occupation or performing any work for compensation of financial value on instruction, purporting to cover the entire case and direct a verdict, was erroneous in merely requiring jury to find that insured became totally and permanently disabled, and in not submitting issue of insured's inability to perform remunerative work, in accordance with provisions of policy.
14. — Instructions. Where insured contended that there had been a waiver of proofs of disability, an instruction purporting to cover entire case and direct a verdict was erroneous in failing to submit the issue as to whether insurer waived proofs within time required and direction that jury could find that insured made demand for payment and that no proofs of claim were furnished by insurer was not a submission of the real issue particularly when there was no duty under contract on insurer to furnish proof of claim.
15. — Instructions — Vexatious Refusal to Pay — Penalties. In another trial, if plaintiff is able to make out a case, it will not be error to submit to jury the question of statutory penalties for vexatious refusal to pay claim, since it has been heretofore determined by appellate court in prior decision of suit against insurer that an insured employee who had not received notice of cancellation of group policy and issuance of new policy in lieu thereof, not providing for permanent disability, was entitled to recover under original policy, insurer having received letter demanding payment of benefits under original policy was not justified in denying liability on theory that original policy had been cancelled.
Appeal from the Circuit Court of Lafayette County. — Hon. Charles Lyons, Judge.
REVERSED AND REMANDED.
William C. Michaels, Henry I. Eager and Robert E. Coleberd for appellant.
Alexander Green and Michaels, Blackmar, Newkirk, Eager Swanson of Counsel.
(1) The contracting parties were the defendant and the Loose-Wiles Biscuit Company. If these parties cancelled the group policy by mutual consent, no notice to, or consent of, plaintiff was required; all the evidence affirmatively showed such cancellation and the actual surrender of that policy (as well as the cessation of premium payments) long prior to plaintiff's alleged disability; there can be no recovery. White v. The Prudential Ins. Co. (Mo. App.), 127 S.W.2d 98; Gallagher v. Simmons Hardware Co. (Mo. App.), 214 Mo. App. 111, 258 S.W. 16; Adair v. General American Life Ins. Co. (Mo. App.), 124 S.W.2d 657; Boseman v. Conn. General Life Ins. Co., 301 U.S. 196; Thull v. Equitable Life Assurance Society, 40 Ohio App. 46, 178 N.E. 850; Magee v. The Equitable Life Assurance Society (N.D.), 244 N.W. 518, 85 A.L.R. 1457; Wann v. Met. Life (Tex. App.), 41 S.W.2d 50; Brown v. The Equitable Life Assurance Society of the United States (Mo. App.), 143 S.W.2d 343; Shepard v. Met. Life Ins. Co. (Mo. App.), 99 S.W.2d 144; Clardy v. Universal Life Ins. Co. (Mo. App.), 79 S.W.2d 509; Eicks v. Fidelity Cas. Co. of New York, 300 Mo. 279, 253 S.W. 1029; Reid v. Missouri State Life (Mo. App.), 24 S.W.2d 1086; Prange v. International Life Ins. Co., 329 Mo. 651, 46 S.W.2d 523, 80 A.L.R. 950; Peterson v. Met. Life (Mo. App.), 84 S.W.2d 157; Lacy v. American Central Life (Mo. App.), 115 S.W.2d 193; Hussey v. Ohio National Life (Mo. App.), 119 S.W.2d 455; Peques v. Equitable Life, 57 S.W.2d 705; Douglas v. Met. Life Ins. Co. (Mo. App.), 297 S.W. 87; Butler v. The Equitable Life Assurance Society of the United States (Mo. App.), 93 S.W.2d 1019; Kloidt v. Met. Life (N.J.), 16 A.2d 274; Duval v. Met. Life (N.H.), 136 A. 400; Leach v. Met. Life, 124 Kan. 584, 261 P. 603; Equitable Life v. Hall (Ky.), 69 S.W.2d 977; Cooper v. Met. Life, 94 S.W.2d 1070; Connecticut General v. Speer, 185 Ark. 615, 48 S.W.2d 553; Davis v. Met. Life, 161 Tenn. 655, 32 S.W.2d 1034; The Prudential Ins. Co. of America v. Ferguson, 51 Ga. App. 341, 180 S.E. 503; Johnson v. Met. Life, 184 S.W. 392; Beecey v. Travelers Ins. Co. (Mass.), 166 N.E. 571; Austin v. Met. Life (La.), 142 So. 337; Inter So. Life v. Esenbock, 256 Ky. 640, 76 S.W.2d 902; Carter v. Aetna Life, 272 Ky. 392, 114 S.W.2d 496; Equitable Life v. Snipes, 274 Ky. 340, 118 S.W.2d 706; Kingsland v. Mo. State Life, 66 S.W.2d 959; Schuerman v. General American Life (Mo. App.), 106 S.W.2d 920; Mitchell v. American Mutual Inc. Co. (Mo. App.), 46 S.W.2d 231. (2) Even if plaintiff had insurance coverage under the group policy sued on, which we deny, nevertheless he did not make a submissible case because he failed to furnish defendant proof of his alleged disability "before the expiration of one year from the date of its commencement." Boillot v. Income Guaranty Co. (Mo. App.), 102 S.W.2d 132; Brown v. Mutual Life Ins. Co. of New York (Mo. App.), 140 S.W.2d 91; Feinberg v. New York Life (Mo. App.), 127 S.W.2d 82; Bergholm v. Peoria Life Ins. Co., 284 U.S. 489; Moss v. Met. Life, 230 Mo. App. 70, 84 S.W.2d 395; Anderson v. Met. Life (Mo. App.), 96 S.W.2d 631; Porter v. Equitable Life (Mo. App.), 71 S.W.2d 766; Adams v. Met. Life, 288 Mo. App. 915, 74 S.W.2d 899; Coburn v. Met. Life, 230 Mo. App. 1140, 91 S.W.2d 157; Smith v. Mutual Benefit Health Accident, 231 Mo. App. 694, 104 S.W.2d 752; State ex rel. Order Commercial Travelers v. Shain, 339 Mo. 903, 98 S.W.2d 597; National Paper Box Co. v. Aetna Life, 170 Mo. App. 361, 156 S.W. 740; Myers v. Maryland Cas. Co., 123 Mo. App. 682, 101 S.W. 124; Burgess v. Mercantile Ins. Co., 114 Mo. App. 169, 89 S.W. 568; Equitable Life Assurance Society of the United States v. Branham's Admx. (Ky.), 92 S.W.2d 357; Grafe v. Fidelity Mutual Life (Mo. App.), 84 S.W.2d 400; Prudential Insurance Co. v. Falls (Tenn.), 87 S.W.2d 567; Patrick v. Travelers Ins. Co. (Ga. App.), 180 S.E. 141; Propst v. Capitol Mutual Association, 233 Mo. App. 612, 124 S.W.2d 515. (3) The court erred: (a) In permitting Dr. Irwig, plaintiff's witness, to give opinions based on hearsay and on matters not in evidence; and (b) in excluding evidence of certain acts performed by the employer in giving notice to its other employees of the change in insurance plan. Oesterle v. Kroger Grocery Baking Co. (Mo.), 141 S.W.2d 780; Evans v. Mo. Pac. R.R., 342 Mo. 420, 116 S.W.2d 8; Chavaries v. National Life Acc. Ins. Co. (Mo. App.), 110 S.W.2d 791; Phares v. Century Elec. Co. (Mo. App.), 131 S.W.2d 879; Corbett v. Terminal R.R., 336 Mo. 972, 82 S.W.2d 97; Murphy v. St. Joseph Ry., etc., Co. (Mo. App.), 283 S.W. 994; Aronovitz v. Arky (Mo., Div. 1), 219 S.W. 620; Borowski v. Loose-Wiles Biscuit Co. (Mo. App.), 229 S.W. 323; Berry v. Kansas City Public Service Co., 343 Mo. 474, 121 S.W.2d 825. (4) Plaintiff's instruction numbered "1" purporting to cover the entire case and authorizing a verdict was erroneous. The giving of this instruction constitutes reversible error. Pollock v. Mo. State Life Ins. Co. (Mo. App.), 123 S.W.2d 212; Martin v. Travelers Ins. Co. (Mo. App.), 247 S.W. 1024; Finley v. Continental Ins. Co. (Mo. App.), 299 S.W. 1107; Toennies v. St. Louis Public Serv. Co. (Mo. App.), 67 S.W.2d 818; Macklin v. Fogel Const. Co., 326 Mo. 38, 21 S.W.2d 14; Long v. F.W. Woolworth Co. (Mo. App.), 109 S.W.2d 85; Pandjiris v. Oliver Cadillac Co., 339 Mo. 726, 98 S.W.2d 978; John v. Aetna Life Ins. Co. (Mo. App.), 100 S.W.2d 936; Rickey v. New York Life Ins. Co. (Mo. App.), 71 S.W.2d 88; Moss v. Met. Life Ins. Co. (Mo. App.), 84 S.W.2d 395; Carroll v. Union Marine Ins. Co. (Mo. App.), 249 S.W. 691; Walker v. Bianchi et al. (Mo. App.), 276 S.W. 1044; Bouligny v. Met. Life Ins. Co. (Mo. App.), 133 S.W.2d 1094; Griffith v. Delico Meat Products Co. (Mo., Div. 1), 145 S.W.2d 431; Koury v. Home Ins. Co. (Mo. App.), 57 S.W.2d 750; Tobin Const. Co. v. Davis et al. (Mo. App.), 81 S.W.2d 474; Jones Store Co. v. Kelly et al. (Mo. App.), 36 S.W.2d 681; Ormsby v. Laclede Farmer's Mutual Fire Lightning Ins. Co., 98 Mo. App. 371. (5) The court erred in submitting the issue of penalties and attorneys' fees to the jury because there was no evidence that defendant vexatiously refused to pay plaintiff's claim. Camdenton School District v. New York Casualty Co. (Mo.), 104 S.W.2d 319; Grandgenett v. National Protective Insurance Association (Mo. App.), 73 S.W.2d 341; State ex rel. Northwestern Ins. Co. v. Trimble et al. (Mo.), 18 S.W.2d 21; State ex rel. Gott v. Fidelity Deposit Co., 317 Mo. 1078, 298 S.W. 83; Medling v. Abraham Lincoln Life Ins. Co. (Mo. App.), 41 S.W.2d 6; Paetz v. London Guarantee Accident Co. (Mo. App.), 71 S.W.2d 826; Mack v. Western So. Life Ins. Co. (Mo. App.), 43 S.W.2d 1108; State ex rel. Met. Life Ins. Co. v. Shain et al. (Mo.), 66 S.W.2d 871; State ex rel. Cont. Life Ins. Co. v. Allen et al., 303 Mo. 608, 262 S.W. 43.
Ike Skelton, Roach Brenner and Walter A. Raymond for respondent.
(1) The defendant insurer and the employer could not cancel the group policy and cut off the rights of this employee plaintiff without notice to him. Butler v. The Equitable Life Assurance Society of the United States, 93 S.W.2d 1019; Adair v. General American Life Ins. Co., 124 S.W.2d 657, 660; Hinkler v. Equitable Life Assurance Society of the United States, 61 Ohio App. 140, 22 N.E.2d 451, 452, 453; Deese v. Travelers Ins. Co. of Hartford, Conn., 204 N.C. 214, 167 S.E. 797, 798; Sgro v. Stuyvesant Ins. Co., 1 A.2d 554, 556. (a) The group policy here involved is not a term policy. Mutual Reserve Life Ins. Co. 1. Roth, 122 F. 853, 856; Prudential Ins. Co. of America v. Ferguson, 180 S.E. 503, 507; Franklin v. Northern Life Ins. Co., 104 P.2d 310, 318; Johnson v. Hartford Life Ins. Co., 166 Mo. App. 221, 148 S.W. 626, 630; Murphy v. Brotherhood of Railroad Trainmen, 199 S.W. 730, 732. (b) The defendant is estopped to deny the first group policy was in force. Voris v. Aetna Life Ins. Co. of Hartford, Conn., 26 F. Supp. 722, 723, 724, 725, 726. (c) The employer was the agent of the defendant and its application of plaintiff's premiums to an unauthorized policy would constitute no defense. Eisen v. John Hancock Mut. Life Ins. Co., 91 S.W.2d 81, 87; All States Life Ins. Co. v. Tillman, 226 Ala. 245, 146 So. 393; General American Life Ins. Co. v. Gant, 119 S.W.2d 693, 695; Gilbert v. Malan, 231 Mo. App. 469, 100 S.W.2d 606, 612, 613. (2) Defendant waived proof of loss by denying liability on the ground the policy had been cancelled. Columbia Paper Stock Co. v. Fidelity Casualty Co., 104 Mo. App. 157, 78 S.W. 320, 322; Soukop v. Employers' Liability Assur. Corp., 341 Mo. 614, 108 S.W.2d 86, 92; Propst v. Capital Mut. Ass'n, 233 Mo. App. 612, 124 S.W.2d 515, 522. (3) The court committed no error prejudicial to defendant's rights in (a) permitting Dr. Irwig to express an opinion as to plaintiff's condition, and (b), in excluding evidence of certain alleged acts of the employer in attempting to give notice to the employees of a change in the insurance plan. Baker v. Chicago, B. Q.R. Co., 327 Mo. 986, 39 S.W.2d 525, 544; Hiatt v. Wabash Ry. Co., 334 Mo. 895, 69 S.W.2d 627, 632; John v. Aetna Life Ins. Co. of Hartford, Conn., 100 S.W.2d 936, 941; Drake v. Kansas City Public Service Co., 333 Mo. 520, 63 S.W.2d 75, 81; McMenamy's Guardianship, 307 Mo. 98, 270 S.W. 662, 672; Laughlin v. K.C. So. Ry. Co., 275 Mo. 459, 205 S.W. 3, 8; Howell v. Sherwood, 242 Mo. 513, 147 S.W. 810, 817; Funsch v. Stevenson, 223 S.W. 593, 595, 596. (4) The court committed no error in giving plaintiff's Instruction No. 1. Propst v. Capital Mut. Ass'n., 124 S.W.2d 515, 524; Powell v. Union Pacific R. Co., 255 Mo. 420, 164 S.W. 628, 638, 640; Mott v. Kansas City, 60 S.W.2d 736, 741. (5) The court properly submitted the issue of attorney's fees and penalties to the jury. Butler v. Equitable Life Assur. Soc. of the U.S., 93 S.W.2d 1019; Friedman v. States Mutual Life Assur. Co., 108 S.W.2d 156, 164; Trembley v. Fidelity Casualty Co., 243 S.W. 201, 203; Porter v. Equitable Life Assur. Soc., 71 S.W.2d 766, 779.
This is a suit upon a total and permanent disability provision of a group policy of life insurance, with an individual certificate issued thereunder to plaintiff. The policy and certificate contain the same total and permanent disability provisions. The group policy was issued by the defendant to the Loose-Wiles Biscuit Company, insuring the lives of the latter's eligible employees, among whom was the plaintiff who applied for coverage. There was a verdict and judgment in favor of plaintiff in the sub of $1374.48, together with $500 attorneys fees and $129.35 for vexatious refusal to pay the loss. Defendant has appealed.
The facts show that, on July 1, 1926, defendant issued the group policy in question. It is unnecessary for us to set out its provisions, as the same will be found in the opinion of this court in Butler v. Equitable Life Assurance Society of U.S., 93 S.W.2d 1019.
However, in addition to the description of the group policy contained in the opinion in that case, we might say that the policy in question provided that the insurance therein provided for should be in force for one year; that the premium should be paid on the first day of each month in advance by the employer. "It is understood, however, that contributions toward the premiums are to be made jointly by the employer and the employees;" that a grace of thirty-one days was given for the payment of all premiums but the first; that defendant would automatically renew the policy annually on payment, in advance, of the monthly premium and compliance, by the employer, with the terms of the policy as to eligibility of employees, percentage of employees insured and division of premium contributions between the employer and employees; that the insurance on any employee should cease upon his filing a written discontinuance with the defendant, or upon the termination of his employment with the employer; that defendant would not exercise the option to adjust the scale of premium rates before the expiration of five years. The policy also provided under the heading "Annual Dividends" that the policy should participate annually in the distribution of the surplus of the defendant as ascertained and appointed by it, and that the policy was issued on the basis of the American Experience Table of Mortality with three per cent interest "and a reserve is held on that basis for the unexpired term."
The policy was renewed annually as of July 1, 1927, 1928, 1929, 1930, 1931 and 1932, as disclosed in the Butler case. It was cancelled as of August 1, 1932, by an agreement between defendant and the Biscuit Company, and a new group policy, similar to the one cancelled, was issued, with the exception that the total and permanent disability clause was omitted and in its stead a new one appended, providing for weekly accident and health benefits. The Biscuit Company paid all of the premiums falling due on the new policy after August 1, 1932.
Defendant, on July 1, 1926, issued to plaintiff, a certificate in the sum of $1000 under the group policy. His insurance was increased by $250 on August 1, 1926, and by an additional $250 on July 1, 1929. The Biscuit Company, his employer, made a reduction from his wages covering his part of the premiums to be paid on the group policy as follows: From July 1, 1926, to August 1, 1929, 75 cents per month; from August 1, 1929, to Aug. 1, 1932, 90 cents per month; from August 1, 1932, to September 1, 1935, $1.85 per month; from September 1, 1935, to July 1, 1937, $2 per month. From July, 1937, until his insurance was cancelled in 1939 he paid to his employer $1.50 per month.
On February 10, 1937, while in the employ of the Biscuit Company, plaintiff fell and struck his back and head on a marble slab, which resulted in his total and permanent disablement from that date.
Defendant introduced evidence of letters sent out, booklets passed out, and notices posted on the bulletin boards in the Biscuit Company plant, notifying employees of the change in the insurance. Plaintiff denied any knowledge of notice of such things and denied a purported application for a certificate under the new plan with his name signed to it. No effort was made to take up the old certificate, which remained in his possession at the time of the trial. Plaintiff, at the trial, and now, contends that, in view of the fact that no notice was given to him of the cancellation of the original group policy, and that he continued to pay his premiums in ignorance of the fact that defendant and the Biscuit Company had cancelled it, the same remains in force as to him.
Defendant insists that its instruction in the nature of a demurrer to the evidence, offered at the close of all of the testimony, should have been given for the reason that the contracting parties to the insurance were it and the Biscuit Company, and that those parties, having cancelled the original group policy by mutual consent, no notice to plaintiff was required.
This case cannot be distinguished, although defendant attempts to do so, from that of Butler v. Equitable Life Assurance Society, supra. Under the authority of that case defendant's contention must be disallowed. Defendant urges that the reasoning upon which the decision in that case was based is fallacious and that the decision should be overruled; but after a careful examination of the authorities cited by both parties hereto we have decided to adhere to the conclusion we reached therein. In addition to what we said in the Butler case as to the valuable rights that plaintiff had in the original policy, we might add that it provided for total and permanent disability, which provision was omitted in the new policy. That this provision in the old policy was a valuable one to plaintiff is shown conclusively by his subsequent suffering of such a disability. Had he been notified of the termination of the old policy, with its disability provision, he could have taken out a policy of total and permanent disability insurance elsewhere, if not in the defendant company.
However, it is insisted that the demurrer to the evidence should have been sustained because plaintiff failed to furnish defendant proof of his alleged disability before the expiration of one year from the date of its commencement.
The total and permanent disability provision reads as follows: "In the event that any employee while insured under the aforesaid policy and before attaining the age 60 becomes totally and permanently disabled by bodily injury or disease and will thereby presumably be continuously prevented for life from engaging in any occupation or performing any work for compensation of financial value, upon receipt of due proof of such disability before the expiration of one year from the date of its commencement, the Society will, in termination of all insurance of such employee under this policy, pay equal monthly Disability-instalments. . . . The first payment shall be due upon receipt of said proofs and shall be for the amount of monthly Disability-instalments accrued from the commencement of said Total and Permanent disability, and subsequent instalments shall be paid monthly during the continuance of such disability until the completion of said instalments."
The record shows that no proof of plaintiff's disability was ever furnished the defendant. However, plaintiff's attorney, on March 14, 1939, wrote defendant: "Sometime ago Mr. Hayes (plaintiff) became injured and has become permanently and totally disabled. . . . If you desire any further information or a medical examination we will be glad to furnish whatever is necessary," and asking that disability payments be made. On March 31, 1939, defendant denied liability on the ground that the original group policy, containing the total and permanent disability provision, had been cancelled, and that it was no longer in force.
Plaintiff admits that no proof of disability was furnished but insists that the testimony shows that the fact that plaintiff was totally and permanently disabled was not discovered by his physician until about the time the letter was written by his attorney to the defendant or, at the latest, three or four months prior to that time, and that as notice of proof of his total and permanent disability could not have been given until it was ascertained that he was so disabled "notice within the prescribed time after it was determined plaintiff was permanently disabled was a proper compliance with the terms of the policy with respect to notice and proof of loss" and that defendant, having denied liability within the time plaintiff had to furnish it, under his theory, proof was waved.
Plaintiff admits that the furnishing of proof, within the time provided in the policy (as interpreted by him), was a condition precedent and, unless waived, he is not entitled to recover.
The petition alleges that plaintiff was totally and permanently disabled on or about the 10th day of February, 1937. The full recovery of installment payments accruing from that date was prayed for. Plaintiff's instructions also permitted recovery for disability from that date. The verdict is based upon these instructions.
Several doctors treated plaintiff but only one of them, Dr. Irwig, was called as a witness by him. The physician testified that he first saw plaintiff on March 15, 1938; that he treated plaintiff for about nine months or a year, and found no evidence of any organic lesions or physical injury; that plaintiff is suffering from traumatic neurosis; that neurosis is a nervous disorder; that the word "traumatic" means that the nervous disorder was brought on by a trauma or an accident; that the traumatic neurosis from which plaintiff was suffering was the malingery type, which means the patient either "wants to be sick or he can't help being sick;" that, in the doctor's opinion, plaintiff wanted to get well but could not. "It is a nervous disease;" that he did not immediately come to the conclusion that plaintiff was suffering from traumatic neurosis; that such a diagnosis is difficult to make; that he came to this conclusion sometime during the time that he treated plaintiff, the exact time not being stated by him.
Plaintiff testified that a few days after the accident he was sent to St. Luke's Hospital in Kansas City, where he was confined for nearly a year; that he has been confined almost continuously in hospitals in Kansas City; that he had a terrible pain in his head which has been continuous since his fall; that he has been unable to sleep at night; that he has lost weight and is very nervous; that he has been unable to do any work since the date of his accident, February 10, 1937; that he has been treated by many members of the medical profession in Kansas City.
The testimony of Dr. Irwig, as to what date he arrived at the conclusion that plaintiff had suffered permanent disability, is indefinite, as already indicated, but it was apparently during the time that he was treating plaintiff and the only testimony on that subject was that the treatments began on October 15, 1938, and continued "for about nine months or a year." However, he did not see plaintiff until after the expiration of many months after the accident and long after he had been treated by other doctors. None of these doctors was called as a witness. Dr. Irwig stated that he had consulted the records of St. Luke's hospital and found that plaintiff was injured on February 10, 1937. He expressed the opinion that plaintiff was in a worse condition "right after the accident because we accomplished some improvement afterwards." He stated that from the records that he had examined he was of the opinion that plaintiff was suffering from traumatic neurosis as far back as February 10, 1937, the date of the accident. Asked, in his opinion, whether plaintiff's condition was permanent, he answered: "I believe so. Q. And your opinion, as just given (that plaintiff's condition was permanent) is based upon your examination of Mr. Hayes? A. My examination, observation, and consultation with the above named doctors, previously named doctors."
It is quite apparent from the doctor's testimony that it is difficult to diagnose a case of this kind and that it requires considerable time to arrive at a conclusion. However, it will be remembered that he did not begin to treat plaintiff for more than a year after the accident and he expressed the opinion that probably plaintiff was in a worse condition immediately after the accident than later. Dr. Irwig's testimony does not disclose as to when he arrived at the conclusion that plaintiff was suffering from traumatic neurosis and, in addition to this, in the absence of the testimony of the other physicians, who treated plaintiff immediately following the accident, the question is left entirely to speculation and surmise as to when his ailment and the permanency thereof was discovered. It may well have been discovered by other physicians sooner than it was by Dr. Irwig.
There is ample authority to the effect that a provision in a policy of insurance requiring the giving of notice or proof of loss within a specified time will be enforced regardless as to whether it became reasonably possible to have given such notice or proofs within the time specified. [See Hatch v. United States Casualty Co. (Mass.), 14 L.R.A. (N.S.) 503.] However, we think the better considered cases rule differently. They hold to the effect that if the circumstances and conditions surrounding the transaction show that it was impossible to give notice, or furnish the proof, within the time specified, its giving will be excluded, and it is sufficient if given or furnished within a reasonable time after it can be given. [See Hilmer v. Western Trav. Acc. Ass'n, 27 L.R.A. 319 and notes; Hayes v. Cont. Cas. Co., 98 Mo. App. 410; Rosenberry v. Am. Benev. Ass'n, 142 Mo. App. 552, 561.] In Soukup v. The Employers' Liability Assur. Corp. etc., 341 Mo. 614, quoting from another Missouri case, the Supreme Court said: l.c. 627: "We think the assured would not be required, under the reasonable rule of construction we are discussing, to give the assurer notice until such time as the facts of the injury and its progress began to suggest to a person of reasonable care and prudence that a possible liability of the assured to answer in damages lurked in them . . . Frequently an injury, apparently too trivial to cause any damage or inconvenience, develops into a most serious phase. The duty of the assured in such instances with respect to giving notice is performed if he gives notice within a reasonable time after the injury first takes on a serious aspect, an aspect suggestive of a possible claim for damages."
These authorities recognize the rule, to the effect, that the law allows persons to enter into contracts as they please, and when a party, by his own contract, creates a charge or duty upon himself, he is bound to make it good, because he might have provided against any accident or the like by his contract. Yet, in cases requiring notice or proof of loss, disability or death, it is held that a reasonable interpretation of the contract will be given and, unless there is an expressed condition in the policy requiring a different interpretation, the courts will not presume that the parties intended the requiring of the insured to do something impossible, under the circumstances, in view of the character of these stipulations. [See Hayes v. Cont. Cas. Co., supra, l.c. 415, 416; Rosenberry v. Benev. Ass'n, supra, l.c. 561.]
However, the contract should be given a reasonable interpretation not only to avoid working an injustice as to the plaintiff but, also, as to the defendant and, we do not think, that merely because the policy gives plaintiff up to the expiration of a year to make the proof after the happening, it follows that he should be given a whole year, after his disability was discovered, in which to make the proof. We think that the rights of both parties are better preserved by a requirement that plaintiff make proof of his disability within a reasonable time after its discovery, and this seems to be the rule in this State. [See cases cited on this point.]
Ordinarily, the question as to whether notice or proof was given or made within a reasonable time would be for the jury, but where all reasonable persons would conclude that notice or proof was not given or made within that time, under all of the circumstances, then it becomes a question of law for the court.
The situation presented to plaintiff upon the discovery of his total and permanent disability was similar to that of an insured with a policy providing that "immediate" notice shall be given to the insurer of disability or death. In such policies the word "immediate" is construed to mean within a reasonable time. [Hogstrom v. Am. Fid. Co. of Montpelier, Vt., 137 Minn. 391; Foster v. Cas. Co., 40 L.R.A. 833.] Of course, what is a reasonable time depends upon the circumstances of the case. In the Railway Passenger Co. of Hartford v. Burrell, 44 Ind. 460, it was held that, under the circumstances of that case, notice given six days after the accident was not furnished within a reasonable time. In Trask v. The State Fire Marine Ins. Co., 29 Pa. 198, it was held that notice given after eleven days was not reasonable. In Foster v. Cas. Co., supra, twenty-nine days. In Katzenstein v. Fid. Cas. Co. of N.Y., 96 N.Y.S. 183, nearly a month. In Quinlan v. P.W. Ins. Co., 133 N.Y. 356, thirty-three days. In Hogstrom v. Am. Fid. Co., supra, fifty-two days. In Ermentrout v. Girard Fire Marine Ins. Co., 63 Minn. 305, nearly sixty days, and Oakland v. Am. Fid. Co., 190 Mich. 74, three months.
Under all of the circumstances present in the case at bar, if defendant was not notified of plaintiff's claim, and did not deny liability until more than three months after it was discovered that he had received a total and permanent disability (and plaintiff admits, in his brief, this may have been the case), then, we think that the time for the furnishing of the proofs had expired, as a matter of law, when defendant denied liability and that there was no waiver on defendant's part in denying liability when it did. [See Propst v. Capital Mutual Association, 233 Mo. App. 612; Grafe v. Fid. Mut. Life Ins. Co., 84 S.W.2d 400; Pru. Ins. Co. of Am. v. Falls, 87 S.W.2d 567.]
However, plaintiff wholly failed to prove that his total and permanent disability was not discovered even sooner than three months before the denial of liability for the reason that he did not put on the witness stand the doctors who first treated him, but only the physician who saw him for the first time more than a year after the accident. Even this doctor's testimony is indefinite as to when he discovered the disability. Consequently, from all that the record shows, the disability may have been known for more than a year prior to the date plaintiff says that the defendant waived the proof of loss. The burden was upon plaintiff to show that he furnished the proof in time, or, that it was waived. This he failed to do and, consequently, defendant's instruction in the nature of a demurrer to the evidence should have been given.
As the case may be retried it is proper to pass upon other points raised by the defendant. In this connection it is urged that the court erred in permitting Dr. Irwig to testify to matters based on hearsay and matters not in evidence. None of the hospital records was introduced in evidence. Under the circumstances, we think it was clearly erroneous for the court to permit Dr. Irwig to express his opinion that plaintiff's disability began on February 10, 1937. [Oesterle v. Kroger Gro. Bak. Co., 141 S.W.2d 780.]
There was no reversible error, however, in the action of the court in excluding the testimony of other employees of the Biscuit Company, to the effect, that they received new certificates and were aware of the change in the insurance plan. [Howell v. Sherwood, 242 Mo. 513; Funsch v. Stevenson et al., 223 S.W. 593.]
At another trial the court should not give an instruction similar to plaintiff's instruction No. One, which purported to cover the entire case and direct a verdict. This for the reason that it failed to submit that plaintiff, by reason of his disability, will presumably be continuously prevented for life from engaging in any occupation or performing any work for compensation of financial value, or the equivalent. The instruction, in this connection, merely submits that the jury find "that plaintiff became totally and permanently disabled." This did not submit the issue in accordance with the provisions of the policy. [Pollock v. Mo. State Life Ins. Co., 123 N.W.2d 212; Martin v. Travelers' Ins. Co., 247 S.W. 1024.] The instruction also was erroneously given because it failed to submit the issue as to whether defendant waived the furnishing of proofs of disability within the time required, under all of the circumstances. The instruction on the question of furnishing proof merely had the jury find that plaintiff made demand for payment for disability and that no proofs of claim were furnished by defendant. This, of course, was no submission of the real issue. Aside from this, there was no duty under the contract on defendant to furnish proof of claim. [Propst v. Capital Mutual Ass'n, supra, l.c. 633.]
If, at another trial, plaintiff is able to make out a case no error will be committed in the submission to the jury of the statutory penalties for vexatious refusal to pay the claim. After our decision in the Butler case, there was no justification for the position taken by the defendant in its letter denying the claim. The contentions that the letter of plaintiff's attorney, notifying defendant of plaintiff's disability, did not constitute proof of liability, and that no proof was tendered within the time required by the policy, and the like, are different than that assigned for nonliability in defendant's letter. [See Block v. U.S. Fid. Guar. Co., 290 S.W. 429.]
The judgment is reversed and the cause remanded. All concur.