Clanton v. Travelers' Protective Ass'n

74 S.W. 510, 101 Mo. App. 312, 1903 Mo. App. LEXIS 390

• Court: Missouri Court of Appeals
• Decided: March 31, 1903
• Status: Published

Opinion

BLAND, P. J.

1. The questions presented by the record in this case are, first, whether or not the plaintiff by his proofs of loss and by his release and discharge of the defendant from all liability, for or on account of accident received by him on March 13,1900, on the payment to him by defendant of $164.28, on June 30, 1900, and, second, whether by his failure thereafter to make any further proofs of loss, he is precluded from recovering any additional sum by reason of complete disability to pursue his usual avocation after April 28, 1900, notwithstanding the disability after April 28, was the result of the injury received by the accident of March 13,1900.

Plaintiff made proofs of loss in which he stated the exact amount he claimed as an indemnity, the exact time he was completely disabled as a result of the accident, the date he recovered sufficiently to resume his usual occupation, and the date when he did resume his occupation and made affidavit to these facts. The defendant accepted his proofs and paid him to a cent the amount of indemnity he claimed he was entitled to and took from him a full and complete acquittance.

Plaintiff in his answer says the payment was one for indemnity up to the date of his proofs of loss and was not intended to cover future indemnity resulting from the same accident, and in his evidence he stated that when he made and forwarded the receipt he at the same time mailed a letter to defendant notifying it that he had not recovered from the injury. A mere letter could not qualify or in the least affect the acquittance he executed and delivered in consideration of the payment of the indemnity to him by the company; and this acquittance, executed in the circumstances shown in evidence, is a complete bar to a further recovery of indemnity on account of the injury alleged.

2. It is contended that plaintiff was ignorant at the time he executed the release that he would be thereafter totally disabled as a result of the injury. His testimony tends to show that after he had received the indemnity and resumed his occupation he accidently abraded the wound, then about healed, which abrasion, caused it to become so sore and inflamed as to disable him until about January T, 1901. It seems to us that this subsequent disability was not the natural and proximate result of the original accident, but was the result of injury caused by a later accident to the old wound. But whether or not plaintiff’s disability after April 28th, was the result of the original accident, or was the accumulated results of that and the subsequent injury, is immaterial as he made no proofs of loss after April 28, 190Ó. It was a condition precedent under his contract of insurance to entitle him to sue for and recover indemnity for any period that he was disabled that he should within 'sixty days after the loss furnish proofs thereof to the defendant. Bickford v. Travelers’ Ins. Co., 67 Vt. 418. Plaintiff made no proofs of any loss suffered after April 28th, and for this reason, if for no other, is not entitled to recover. Burnham v. Ins. Co., 75 Mo. App. 394; Maddox v. Ins. Co., 56 Mo. App. 343; Porter v. Ins. Co., 62 Mo. App. 520; LaForce v. The Williams City Ins. Co., 43 Mo. App. 518; Sims v. Ins. Co., 47 Mo. 54.

The judgment is reversed.

Beyburn, and Goode, JJ., concur.