Opinion
No. 38546.
November 1, 1943.
1. CERTIORARI: Insurance: Total Disability: No Conflict. There was no conflict in the opinion of the Court of Appeals that the insured was continuously and wholly disabled from the date of the accident in which he was injured to the date of his death.
2. CERTIORARI: Insurance: Vexatious Refusal To Pay: Statements Obtained After Suit Commenced: No Conflict. The opinion of the Court of Appeals was not in conflict in holding that there was a jury issue of vexatious refusal to pay when liability had been denied and no investigation made until after suit had been filed.
3. CERTIORARI: Witnesses: Refusal To Permit Impeachment of Own Witnesses: No Conflict. The opinion of the Court of Appeals was not in conflict in holding that only one of nine witnesses for defendant who repudiated their statements could be cross-examined and that the statements could not be introduced.
4. CERTIORARI: Insurance: Trial: Material Omission In One of Two Instructions Directing Verdict: Not Harmless Error: Opinion In Conflict. Where one of plaintiff's instructions which directed a verdict omitted the essential element of immediate, continuous and complete disability which was a condition of the policy, the fact that another instruction correctly included this element did not prevent the omission from being reversible error, and the opinion of the Court of Appeals to the contrary was in conflict.
RECORD AND OPINION OF COURT OF APPEALS QUASHED IN PART.
Moser, Marsalek Dearing and Theo. J. Krauss for relator.
(1) Although there was no evidence that the insured was immediately, continuously and wholly disabled from the date of the alleged accident, respondents, in the course of their opinion, found that "the effect of plaintiff's evidence was to indicate that he did no work at any time after the occurrence of the accident" and, upon such evidence, held that the jury might find for plaintiff. In so holding, respondents contravened a controlling opinion of this court that to recover under the policy plaintiff must sustain the burden of proving inability to work. Martin v. Travelers' Ins. Co., 310 Mo. 411, 276 S.W. 380. (2) In holding that Instruction 1 was not erroneous, respondents found that said instruction directed a verdict in favor of plaintiff and that it did not require a finding that the insured was immediately, continuously and wholly disabled from the date of accident, and further found that "if Instruction 1 had been plaintiff's principal instruction, it would unquestionably have been erroneous, but, since it was obviously not her principal instruction," it was not erroneous. Respondents' holding that Instruction 1 was not plaintiff's "principal" instruction was predicated upon their finding that Instruction 2, which also directed a verdict for plaintiff, did include the requirement of a finding that the insured was immediately, continuously and wholly disabled. In approving said instruction, which directs a verdict, but omits the requirement of a finding of an essential element necessary to plaintiff's recovery, respondents have contravened controlling opinions of this court. State ex rel. Hartford Fire Ins. Co. v. Trimble, 298 Mo. 418, 250 S.W. 393; Bellows v. Travelers' Ins. Co., 203 S.W. 978. (3) Respondents further held that the instruction "is not to be construed as having assumed the fact of an accidental injury," and further that "even if the instruction were to be read as having assumed the occurrence of the accidental injury, it would still not be fatally defective on account of such assumption." In so holding, respondents contravened controlling opinions of this court that it is error for the court to give an instruction which assumes a controverted fact. Woehler v. St. Louis, 342 Mo. 237, 114 S.W.2d 985; State ex rel. Missouri Gas Elec. Service Co. v. Trimble, 307 Mo. 536, 271 S.W. 43; Barr v. Nafziger, 328 Mo. 423, 41 S.W.2d 559. (4) Respondents, in their opinion, held that the question of vexatious refusal to pay was a question for the jury, properly submitted by Instruction 4, because the defendant "had but little competent evidence to offer, and that of but slight persuasive effect." Relator offered in evidence the written statements of nine witnesses who, in said statements, wholly substantiated the defense, but who, when called by relator, refused to testify in accordance with such statements. In holding that said statements were not admissible, respondents said: "Nor is our conclusion in anywise altered by reason of the undoubted relevancy of such statements to the issue of vexatious refusal to pay." In holding that the question of vexatious refusal was a question for the jury, respondents contravened controlling opinions of this court that the penalty cannot be inflicted unless the refusal was willful and without reasonable cause as the facts appeared to a reasonable and prudent man before the trial. Non-Royalty Shoe Co. v. Phoenix Assur. Co., 277 Mo. 399, 210 S.W. 37; Aufrichtig v. Ins. Co., 298 Mo. 1, 249 S.W. 917; State ex rel. Continental Life Ins. Co. v. Allen, 303 Mo. 608, 262 S.W. 43; State ex rel. John Hancock Mut. Life Ins. Co. v. Hughes, 152 S.W.2d 132; State ex rel. Gnekow v. U.S.F. G., 163 S.W.2d 86. (5) And in holding that the nine statements were not admissible on this question, respondents contravened a controlling decision of this court that any evidence relevant to this issue is competent. Fay v. Aetna Life Ins. Co., 268 Mo. 373, 187 S.W. 861. (6) And in holding that Instruction 4 properly submitted this issue to the jury, although not informing the jury that vexatious refusal to pay meant without reasonable cause as the facts appeared to a reasonable man before the trial, respondents contravened the controlling opinions of this court.
Barak T. Mattingly and Fred Berthold for respondents.
(1) It is well settled that to be totally disabled within the sense of an insurance policy such as the one now in question, it is not essential that the insured be absolutely helpless, but it suffices to bring him within the protection of the policy if his infirmity is such as to render him unable to perform, in the usual and customary way, substantially all of the material acts necessary to the prosecution of his own occupation, business or profession, or, in many cases, any occupation, business or profession which he would be able to engage in except for his disabling infirmity. Heald v. Aetna Life Ins. Co. of Hartford, 340 Mo. 1143, 104 S.W.2d 379; Bellows v. Travelers Ins. Co. of Hartford, 203 S.W. 978; Moss v. Metropolitan Life Ins. Co., 84 S.W.2d 395; Eden v. Metropolitan Life Ins. Co., 138 S.W.2d 745; Brown v. Mutual Life Ins. Co. of New York, 140 S.W.2d 91; Rogers v. Metropolitan Life Ins. Co., 122 S.W.2d 5; Farmer v. Metropolitan Life Ins. Co., 85 S.W.2d 235; Young v. Metropolitan Life Ins. Co., 84 S.W.2d 1065, certiorari quashed in State ex rel. Metropolitan Life Ins. Co. v. Allen, 100 S.W.2d 487, 339 Mo. 1156; Buis v. Prudential Ins. Co. of Am., 77 S.W.2d 127; Thomas v. Metropolitan Life Ins. Co., 89 S.W.2d 590; Stoner v. N.Y. Life Ins. Co., 90 S.W.2d 784; Pogue v. Metropolitan Life Ins. Co., 107 S.W.2d 144; Moss v. Metropolitan Life Ins. Co., 84 S.W.2d 395, certiorari quashed State ex rel. Metropolitan Life Ins. Co. v. Hostetter, 92 S.W.2d 122. (2) Instruction 1 did not assume that the death of Zips was caused by an accidental blow. Bloch v. Kinder, 338 Mo. 1099, 93 S.W.2d 932; Reith v. Tober, 320 Mo. 725, 8 S.W.2d 607; Rummels v. Ill. Central Railroad Co., 15 S.W.2d 363; Rishel v. K.C. Public Serv. Co., 129 S.W.2d 851; Long v. Mild, 149 S.W.2d 853; Gilpin v. Aetna Life Ins. Co., 132 S.W.2d 686; Krug v. Mutual Life Ins. Co. of N.Y., 149 S.W.2d 393; Flint v. Loews St. Louis Realty Amusement Co., 126 S.W.2d 193. (3) There was no dispute in the evidence that the tail gate had fallen and struck insured across the neck, and such evidence is uncontroverted and instruction would not be fatally defective if it assumed an uncontroverted fact. Lewis v. Terminal Railroad Assn. of St. Louis, 61 S.W.2d 234; Fleming v. Joseph F. McMahon Contracting Corp., 45 S.W.2d 952; Keyes v. Chicago, B. Q. Railroad Co., 31 S.W.2d 50; Miller v. Collins, 40 S.W.2d 1062; Bowers v. K.C. Public Service Co., 41 S.W.2d 810; Hill v. St. Louis Public Serv. Co., 64 S.W.2d 633; Simpson v. St. Louis-San Francisco Rd. Co., 70 S.W.2d 904; Byrnes v. Poplar Bluff Printing Co., 74 S.W.2d 20; Sullivan v. John Hancock Mut. Life Ins. Co., 110 S.W.2d 870; King v. Reith, 108 S.W.2d 1. (4) Instructions must be read and construed together, and verdict will be sustained where they contain complete exposition of law and cover every phase of case, when taken together, though incomplete and objectionable when taken separately. McDonald v. K.C. Gas Co., 59 S.W.2d 37; Jenkins v. Mo. State Life Ins. Co., 69 S.W.2d 666; Engleman v. Railway Express Agency, 100 S.W.2d 540; Schneider v. Dubinsky Realty Co., 127 S.W.2d 691; King v. Rieth, 108 S.W.2d l.c. 5; Dorman v. E. St. Louis Ry. Co., 75 S.W.2d 854; Arnold v. May Dept. Stores Co., 85 S.W.2d 748; Carr v. St. Joseph, 225 S.W. 922. (5) Instruction telling the jury that if they found insured's death caused by blow upon neck then plaintiff's right of recovery was not to be affected by the fact that the injury became infected and diseased, so long as the jury found that death would not have come at the time and under the circumstances that it did except for the blow upon the head and neck, was incidental to the main instruction and did not permit the jury to indulge in speculation and was not argumentative. Krug v. Mutual Life Ins. Co. of N.Y., 149 S.W.2d 393; Fetter v. Fidelity Casualty Co., 73 S.W. 592. (6) A defendant, considering that the jury is not fully instructed in certain issues, must offer clarifying instructions. Williams v. Guyot 126 S.W.2d 1137; Corbin v. Kansas City, C.C. St. Joseph Ry. Co., 41 S.W.2d 832; McGinnis v. St. Louis Pub. Serv. Co., 44 S.W.2d 886; Lach v. Buckner, 86 S.W.2d 954; Henry v. First Natl. Bank, 115 S.W.2d 121; Hart v. K.C. Pub. Serv. Co., 142 S.W.2d 348; Hiatt Inv. Co. v. Buehler, 16 S.W.2d 219; La Mear v. Wells, 22 S.W.2d 876; Byram v. E. St. Louis Ry. Co., 39 S.W.2d 376; Taylor v. Alton Rd. Co., 148 S.W.2d 806; Krug v. Mutual Life Ins. Co. of N.Y., 149 S.W.2d 393. (7) Instructions may be supplementary to each other. Burneson v. Zumwalt Co., 159 S.W.2d 605. (8) Instructions are not required to be drawn with such technical accuracy as to be free from hypercritical objection, but are sufficient if jury can correctly understand therefrom the rules of law applicable. Lewis v. Zagata, 166 S.W.2d 541. (9) The question of vexatious refusal to pay was one of fact for the jury to determine. State ex rel. v. Trimble, 322 Mo. 1236, 18 S.W.2d 21. (10) Vexatious delay need not be explicitly proven. Kellog v. German, etc., Ins. Co., 113 S.W. 663. (11) Attorneys' fees may be allowed without penalty for vexatious delay. Elliott v. Fidelity and Phenix Fire Ins. Co. of N.Y., 267 S.W. l.c. 444. (12) A party may not directly impeach his own witness, unless the witness produces a situation of entrapment and shows hostility, and it is a matter within the sound discretion of the trial court, and appellate court will not interfere with a proper exercise of that discretion. Richeson v. Roebber, 159 S.W.2d l.c. 659; Smith v. Ohio Millers Mutual Fire Ins. Co., 6 S.W.2d l.c. 929; Beier v. St. Louis Transit Co., 94 S.W. l.c. 881; Burnam v. Chgo. Great Western R. Co., 100 S.W.2d l.c. 867. (13) The Supreme Court looks to respondents' opinion for the facts and accepts same, as therein stated, as the facts of the case to be ruled. State ex rel. v. Hostetter, 126 S.W.2d 1173.
This is a proceeding in certiorari instituted by relator to quash the record and opinion of the St. Louis Court of Appeals in the case of Zips v. Mutual Ben. Health Accident Ass'n., 169 S.W.2d 62.
Relator contends that respondents' opinion is in conflict with controlling decisions of this court in several respects. We will refer to these opinions in discussing the points briefed. Respondents' opinion may be read in connection herewith to get a full and detailed statement of the case. A brief resume will be necessary to illustrate the points made. August Zips, plaintiff's husband, was insured by the relator. A clause in the insurance contract read as follows:
"`If the Insured shall, through accidental means, sustain bodily injuries . . . which shall, independently and exclusively of disease and all other causes, immediately, continuously and wholly disable the Insured from the date of the accident and result in any of the following specific losses within thirteen weeks, the Association will pay:
"`For Loss of Life ................................ $2,000.00
"`And in addition, $80 a month for the period between the date of accident and the date of death.'"
The insured was engaged in trucking and on August 8, 1941, was hauling coal. While attempting to adjust the tail gate of a truck so as to permit it to open, he stopped reaching for a shovel. While doing so the tail gate suddenly opened and struck him on the back of the head and neck. He immediately quit work and went home letting his helpers finish unloading the coal. The injured area of the neck became infected and Zips died on August 28, twenty days after the date of the injury. Relator insists that plaintiff failed to prove that the insured was immediately, continuously and wholly disabled from the date of the accident to the date of death.
Relator contends here that respondents in their opinion ruled that the evidence tending to prove insured did not work at any time after the occurrence of the accident was sufficient to show that he was unable to work; that such ruling is in conflict with Martin v. Travelers' Ins. Co., 310 Mo. 411, l.c. 416, 276 S.W. 380, l.c. 381. That case, however, is not in point. Note a brief excerpt from the opinion concerning the facts:
"Nor can there be any doubt that he" (meaning insured) "was not wholly and continuously disabled from the night of September 15th, when the alleged injury was received, until after the completion of his night's work, on the shift beginning September 17th, from performing any and every kind of duty pertaining to his occupation."
The evidence was that the insured was a fireman on a railroad and that he worked or finished [861] his run on that day and completed another run following the injury. Respondents in their opinion did not base their ruling as to the sufficiency of the evidence alone on the fact that insured did not work. The opinion reveals that before the injury insured was a large man in good health and was exceedingly powerful for his age. When the tail gate struck him he fell to his knees in terrific pain. Spots of blood appeared on his neck and the skin was broken. Thereafter he did not solicit business, but spent his time at home lying on a couch complaining of pain in the back part of his head and neck. His wife wanted him to see a doctor but he did not do so until August 16, at which time the doctor found insured's neck entirely rigid and infected. These are only some of the circumstances supporting the court's ruling. No evidence was introduced that plaintiff worked, or that he was able to work after the injury. The ruling of the court is not in conflict with the case relied upon by relator.
Relator contends respondents' opinion, holding that the question of vexatious refusal to pay was for a jury, is in conflict with rulings of this court in the following cases: Non-Royalty Shoe Co. v. Phoenix Assur. Co., Limited, of London, England, 277 Mo. 399, 210 S.W. 37; Aufrichtig v. Columbia Nat. Life Ins. Co., 298 Mo. 1, 249 S.W. 912; State ex rel. Continental Life Ins. Co. of Kansas City v. Allen, 303 Mo. 608, 262 S.W. 43; State ex rel. John Hancock Mut. Life Ins. Co. v. Hughes, 152 S.W.2d 132; State ex rel. Gnekow v. U.S. Fidelity Guaranty Co., 349 Mo. 528, 163 S.W.2d 86. Relator in its brief on this point has the following to say:
"Respondents, in their opinion, held that the question of vexatious refusal to pay was a question for the jury, properly submitted by instruction No. 4, because the defendant `had but little competent evidence to offer, and that of but slight persuasive effect.'"
Relator at the trial offered, but the trial court refused to admit in evidence, signed statements of nine witnesses to the effect that the insured had worked after the accident. These witnesses denied having told a representative of the company that the deceased had worked after he was injured. The court of appeals, on the question of vexatious delay, called attention to the fact that these alleged signed statements had not been obtained until after suit was filed. Note what respondents have to say in their opinion:
"So far as the record discloses, it denied liability, permitted the action to be brought, and then made its investigation of the case two months afterwards. If it had evidence in its possession other than that obtained at the time of such investigation, it made no effort to introduce it, and plaintiff is wholly within her rights in calling attention to this circumstance because of the necessity that she show vexatious delay beginning or occurring before the filing of the suit. State ex rel. v. Trimble, 322 Mo. 1236, 18 S.W.2d 21."
It is so apparent that the ruling of the court of appeals on this point is not in conflict with the cases cited by relator that we will not review them. In all of those cases this court held that there was a reasonable basis for a contest and substantial evidence offered in support of the defense made.
Again relator contends that respondents' opinion, approving the ruling of the trial court in refusing to admit in evidence the statements of nine witnesses called by the defendant, is in conflict with Fay v. Aetna Life Ins. Co., 268 Mo. 373, 187 S.W. 861. Relator says that the nine witnesses were hostile and that relator was surprised when they refuted the statements. It will be noted from respondents' opinion that the trial court permitted relator to cross-examine the first of these nine witnesses and then refused to let the others be cross-examined, or to allow the statements to be offered as evidence. The court of appeals treated this question at length. Note pages 68 and 69 of 169 S.W. 2d. Respondents ruled the question correctly and in harmony with rulings made by this court. See cases cited in respondents' opinion at page 69 (7), the rule being that ordinarily a party will not be entitled to cross-examine his own witness or to impeach him by introducing signed statements alleged to have been made by such witness. Respondents in their opinion concluded the witnesses were not hostile or unfriendly, nor were they interested in the case.
We now approach the only point made by relator that has any merit. The trial court gave, at plaintiff's request, instructions numbers one and two. Each authorized a verdict for plaintiff. Instruction number one appears at page 70 of 169 S.W.2d, and instruction number two at page 71. Instruction number one did not require a finding that Zips was immediately, continuously and wholly disabled from the date of the accident to the date of death. This was a condition contained in the insurance contract. [862] Instruction number two required the jury to find all facts necessary to entitle plaintiff to recover. The court of appeals considered the question at length and held that since instruction number one was not plaintiff's principal instruction the omission was not reversible error. We quote the following from the opinion as to what the court held:
"If instruction No. 1 had been plaintiff's principal instruction, it would unquestionably have been erroneous, but since it was obviously not her principal instruction, we cannot believe that the giving of it should be held to have constituted reversible error when due regard is had for the limited and special purpose it was expressly designed to serve. This is not to say that the giving of instruction No. 2 would have cured the error of the omission of any essential element from instruction No. 1, but only that the inclusion of the element of immediate, continuous, and total disability was not essential to the sufficiency of instruction No. 1, which had nothing to do with the question of when the insured's disability became total, but was patently intended to do no more than charge the jury, in effect, that if the case was otherwise one where plaintiff should recover, she was not to be defeated by reason of the fact that the insured's injury became infected and diseased."
Instruction number one could easily have been worded so as to govern the point intended to be treated without directing a verdict, but since it authorized a verdict for plaintiff, if the jury found the questions of fact therein submitted in plaintiff's favor, and since it omitted an essential issue of fact necessary to make a case for plaintiff, the instruction was prejudicially erroneous. The ruling of the court of appeals is in direct conflict with a ruling of this court made in the case of Bellows v. Travelers' Ins. Co. of Hartford, Conn., 203 S.W. 978, l.c. 985 (5) (6) (7). The case seems to be directly in point. Note what this court said under paragraph five:
"Taking the instructions together, they set out two grounds upon which a recovery may be had by the plaintiff: (1) Upon proof of the facts bringing the death directly within the terms of the policy; and (2) by proof of facts bringing it indirectly within the terms of the policy by showing that the death resulted from disease induced by the injury. The first instruction required proof of continuous disability. The second required no proof of intervening disability whatever. That this omission in the second is error is not denied, nor can it be denied that the first instruction had no tendency to render it harmless. Each covered the whole case upon its own distinctive facts."
Under paragraph seven this court had the following to say:
"An instruction which expressly directs the jury to return a particular verdict upon finding a particular fact is not rendered harmless by one which tells them not to return such a verdict without proof of another fact, because it is impossible to obey both unless that other fact be found. It is a doctrine, reeking with danger, which imposes upon them the duty of making such a choice.
"This exact question was before this court in banc in Hall v. Coal Coke Company, 260 Mo. 351, 168 S.W. 927, Ann. Cas. 1916C, 375, and was decided, after full consideration in conformity with the views here expressed."
That portion of respondents' record and opinion dealing with the question of whether the giving of instruction number one constituted harmless error is hereby quashed. Bohling and Barrett, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.