Opinion
No. 21517.
March 5, 1951.
APPEAL FROM THE CLINTON CIRCUIT COURT OF CLINTON COUNTY, FRED H. MAUGHMER, J.
Edward L. Scheufler, Maurice E. Benson, Kansas City, for appellant.
R. H. Musser, Plattsburg, Pross T. Cross, Gerald Cross, Lathrop, for respondent.
Defendant, a health and accident insurance company, appeals from a judgment in favor of plaintiff in the amount of $1350. The judgment is the result of a suit instituted by plaintiff, based on a sick and accident policy issued by defendant to him.
Plaintiff became totally disabled by reason of partial paralysis, and partial loss of sight, on December 24, 1948. On December 25, he entered the United States Veteran's Hospital, at Wadsworth, and was a patient there until May 6, 1949. He was discharged for the stated reason that further treatment would not be especially beneficial. Plaintiff's theory of recovery is that he was injured in a truck accident, on December 24, 1948, when he suffered a blow on the head, breaking a blood vessel in the brain, resulting in a brain hemorrhage. Under that theory he would be entitled to recover $1350 at this time and, if disability from the same cause continued, he would hereafter be entitled to further benefits not to exceed a total of 60 months at $100 per month.
Defendant's position is that plaintiff suffered from high blood pressure, prior to the time of the alleged injury on December 24 and that, as a result of disease, he suffered a cerebral thrombosis; that his disability was caused by disease, not accident. Under defendant's theory plaintiff is entitled to recover $1350, the amount of the judgment, which would end its liability on the policy.
The policy provided for benefits based on accidental injury, at the rate of $100 per month, for a maximum of 60 months, plus $50 per month for 3 months, for necessary hospitalization. It also provided benefits, based on sickness, at the rate of $100 per month for a period not exceeding 12 months, plus $50 per month for a period of not more than 3 months, if insured was hospitalized during such period.
By instructions G and F, given at the request of defendant, the jury was told that the policy was in full force and effect during the period above-mentioned; that, in any case, plaintiff was entitled to a judgment in the amount of $100 per month for 12 months, plus $50 per month for 3 months; and that: "* * * the sole issue for your determination is whether such total disability came into being by reason of accident or by reason of sickness."
Defendant urges, as a ground for reversal, under Point II of the brief, the failure of the trial court to sustain its motion for a directed verdict at the close of the evidence for the reason that the evidence showed that plaintiff's disability did not require medical attention, and plaintiff did not actually receive such attention. It is true that the policy does require as a condition of recovery, that plaintiff be wholly and continuously disabled and require "regular medical attention." That requirement attaches to the provisions for benefits for disability due to accident as well as to those due to sickness. Defendant's counsel stated, during the trial, that defendant had repeatedly offered to pay plaintiff the benefits provided under the health provisions of the policy. Defendant thereby waived this provision of the policy as to sickness, and never intended to rely thereon until it brought up this appeal.
Defendant caused to be introduced into evidence the United States Veteran's Hospital records relating to plaintiff. Those records disclosed that plaintiff received regular medical attention so long as he remained at the hospital, and that he was discharged because his condition was such that further hospitalization would be unprofitable to him. However, defendant formally read into the record an admission that plaintiff was, and remained, totally disabled during the entire period for which recovery was sought; and evidence to that effect, if not conclusive, was strong, convincing and undisputed. The evidence failed to show that plaintiff did not require medical attention, only that the hospital records indicated that his condition was such that hospitalization would not be beneficial because of the nature and extent of his disability.
Defendant asked no instruction on the point, nor did it raise any such issue, directly, in the pleadings.
The rule is that when a policy contains a general liability clause, such as appears here, followed by a clause providing stated exceptions from the operation of the general clause, the burden is on defendant to affirmatively plead and prove such an exception, not on plaintiff to plead or prove strict compliance therewith. Christy v. Great Northern Life Insurance Company, 238 Mo.App. 525, 181 S.W.2d 663, 669, 670. This burden defendant did not assume.
Defendant also complains, in Point III of its brief, of the failure of the court to sustain its motion for directed verdict on the grounds that there was no evidence of compliance with the policy provision requiring written notice of injury, filing of proofs of loss, or of waiver of those requirements. Defendant made no such defense in the trial court. The evidence is silent as to notice and proofs of loss. However, what has been heretofore said as to defendant's contention under its Point II is equally applicable here. Both contentions are disallowed for the reasons stated.
Defendant abandoned any defense based on either of these propositions when it caused to be given instructions G and F, above-mentioned, thereby abandoning all defenses and possible issues except that as to whether plaintiff's condition was due to injury or to disease; but defendant contends that it had the right to rely on such defenses at the time it requested a directed verdict. Such defenses were not available, under the state of the records, at that time, and we so rule.
What has been said heretofore requires an adverse ruling on defendant's criticism of plaintiff's instruction 1.
This brings us to the only real issue in this case, namely: Is plaintiff's disability due to injury?
Plaintiff stated in evidence that he was a plasterer; that on the afternoon of December 24, at about 5 p. m., he attempted to drive his truck into the driveway of his yard; that he could not make it, backed out and drove to the corner to turn; that he met a car and, in order to avoid a collision, was forced too near to the side of the street; that it was slick and his truck skidded, or slipped, partially into a deep ditch; that he was shaken, bumped and bruised thereby; that his wife came to the truck, helped him out, and to the house; that he had previously been strong and healthy but he had had a bad fall from a scaffold, while plastering, some 3 months prior to December 24; that he got back on the scaffold and completed the job and continued to work thereafter. (His testimony in this regard was substantiated by another witness.) He stated that he did not feel well the night of the 24th and that, the next day, he became dizzy, vomited, and lost consciousness.
Mrs. Whited stated that she saw the truck go into the ditch, aided her husband to dismount, and to the house; that he said he believed he would have a "goose egg" on his head, was apparently shaken and not feeling well that night; that a large ridge developed on the left side of his head; that the next day he became dizzy, vomited and, later, become unconscious; that he was taken in an ambulance on December 25 to the Veteran's Hospital, in a dazed and unconscious condition.
Dr. Batty was called before plaintiff was sent to the hospital but he was not available as a witness when the case was tried.
Mr. Blocher testified to the effect that he saw and talked with plaintiff the evening of December 24, and offered to help him move his truck, which he saw when it went into the ditch; that plaintiff told him he did not feel well; that he had hurt his head when the truck went into the ditch and would let his brother-in-law move it the next day.
The above testimony was in no wise directly controverted; but the "history" portion of the hospital records contained no mention of the truck accident, but did contain a history of headaches following plaintiff's fall from the scaffold.
Two medical witnesses testified, Dr. Santner having been called by plaintiff, and Dr. Spaulding by defendant.
Dr. Santner examined plaintiff a few days prior to the trial. He stated that he did not then know about this lawsuit, or that he would be a witness, and examined him as he would any patient. He stated that plaintiff was partially paralyzed, on his right side; that this condition was due, in his opinion, to a brain hemorrhage caused by a blow on the left side of plaintiff's head; that it was not caused by cerebral thrombosis, resulting from high blood pressure, or disease; that the fall from the scaffold probably caused a light hemorrhage (evidence the headaches following) but that such injury was being overcome when plaintiff suffered a blow in the truck accident which caused a blood vessel to break; that slow leakage of blood through the night resulted in building up pressure on the brain, causing the unconsciousness and paralysis that occurred on December 25.
Dr. Spaulding, in answer to hypothetical questions put by plaintiff's counsel, and based on the testimony on cross-examination expressed the same opinion as did Dr. Santner. Both doctors expressed the unqualified opinion that plaintiff's disability stems directly from a blow on the head received in the truck accident, and not from disease.
The only medical evidence contradictory of the above is that appearing in the hospital records, where his condition was attributed to cerebral thrombosis, due to disease.
The case of Schepman v. Mutual Benefit Health Accident Ass'n, 231 Mo.App. 651, 104 S.W.2d 777 is similar to the case at bar, on the facts. That was a case where insured suffered a blow on the head, after retiring. The next morning he suffered a "stroke" and, some 5 weeks later he suffered a final and fatal stroke. We held that there was substantial evidence tending to show that both strokes were caused by the accidental blow on the head, followed by "delayed apoplexy." The opinion in that case was well considered and expressed. The facts herein bring this case within the rule there declared.
This case was properly submitted to the jury.
It is contended by plaintiff that this court should award to plaintiff such damages, not exceeding 10% of the judgment, as may be just. This contention is based on what is now Section 847.140, Mo.R.S.A., R.S. 1949, § 512.160, apparently a slight modification of Section 1230, R.S.Mo. 1939, now repealed.
We assessed such a penalty in Boillot v. Income Guaranty Company, 233 Mo.App. 299, 120 S.W.2d 74, and in a companion case thereof reported, 233 Mo.App. 293, 120 S.W.2d 76. In those cases, it was inescapably obvious that both appeals were prosecuted in order to obtain a delay, and to harass plaintiff, so as to force him to make settlement for a less sum than that to which he was entitled.
However, this section of the statute should be applied with caution, and never where there is presented a fairly debatable question of facts or unsettled question of law, Bonzon v. Metropolitan Life Insurance Company, Mo.App., 143 S.W.2d 336.
The basic question, regarding cause of disability, was settled by the jury; and the verdict is supported by substantial and competent evidence. The applicable law, on this phase of the case, was declared in Schepman v. Mutual Benefit Health Accident Ass'n, supra.
However, defendant contends that the court erred in refusing to instruct a verdict for it because of the lack of proof of regular medical attention, filing notice of injury, and proofs of loss. That contention rests on very thin ice, so thin as to raise a doubt in the mind of the court as to whether or not it was seriously raised but, in view of the whole record here, and from what is near and excess of caution, we think, perhaps, the penalty should not be applied. We are inclined to this position largely because the new civil code has brought about many changes in procedure, particularly in pleading, the full extent thereof being as yet unknown to the bench or bar.
The judgment should be affirmed.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is affirmed.
All concur.