Opinion
No. 31812.
October 14, 1935.
1. TRIAL.
In determining whether directed verdict should be granted, evidence must be taken most strongly in favor of party against whom it is asked, and every material fact which there is substantial evidence to establish, either directly or by reasonable inference, should be treated as proved in his favor.
2. INSURANCE.
Insured held not entitled to recover, on ground of disability, disability premiums voluntarily paid on life policy which provided that upon proof of total and permanent disability payment of disability premiums should cease.
3. ACTION.
Where insured joined two insurance companies in action on two life policies, there was misjoinder of defendants in absence of allegation or proof that same insurance company operated under different names when policies were issued, and that one company issued both policies.
4. INSURANCE.
In action on disability clause of life policy in which insured alleged disability arising out of diabetes mellitus, admission of testimony that insured also had, as outgrowth of such diabetes, neuritis, arthritis, nephritis, and arteriosclerosis, held not error.
5. EVIDENCE.
In action by insured who suffered from diabetes mellitus to recover disability benefits under disability clause of life policy which defined disability as physical condition preventing insured from directing any gainful trade or profession, refusal to permit insurer to show on cross-examination of physician testifying for insured that insured could carry on his profession, notwithstanding his diabetes, held not error.
6. EVIDENCE.
In action to recover disability benefits under life policy, refusal to permit lay witnesses to testify concerning insured's manner and method of doing business, general appearance, and activities shortly before and after date, when insurer discontinued disability benefits, held abuse of discretion.
7. INSURANCE.
Insurer's acknowledgment that insured was totally and permanently disabled for certain period did not preclude insurer from all evidence having bearing on insured's condition thereafter.
APPEAL from circuit court of Tippah county.
HON. T.H. McELROY, Judge.
Action by Willie Lee Gunn against the Columbian Mutual Life Insurance Company. From a judgment for the plaintiff, the defendant appeals. Reversed and remanded.
J. Morgan Stevens and J.M. Stevens, Jr., both of Jackson, Fred B. Smith, of Ripley, and Scott Fitzhugh, of Memphis, Tennessee, for appellant.
The court erred in granting a peremptory instruction to find for the plaintiff.
If there be any substantial reasonable testimony and conceding that testimony to be true, which sustains the case of a party litigant, a peremptory instruction should not be granted against that party.
Fore v. Union Central R.R. Co., 160 So. 903; Justice v. State, 170 Miss. 96, 154 So. 265; Jefferson Standard Life Ins. Co. v. Jeffcoats, 164 Miss. 659, 143 So. 842.
Everything must be considered as proved which the evidence established, either directly or by reasonable inference, against the party who requests a peremptory instruction.
Dean v. Brannon, 139 Miss. 312, 104 So. 173, 175; Keith v. Y. M.V.R.R. Co., 168 Miss. 519, 151 So. 916; Lee County Gin Co. v. Middlebrooks, 161 Miss. 422, 137 So. 108; Lowe v. M. O.R.R. Co., 149 Miss. 889, 116 So. 601; G. S.I.R.R. Co. v. Prine, 118 Miss. 90, 79 So. 62.
Counsel for appellee relied upon the case of Metropolitan Life Ins. Co. v. Cato, 113 Miss. 283, 74 So. 114, as authority for the peremptory instruction in the case at bar. We recognize that the Cato case is one of the first and one of the leading cases favorable to the assured in cases of this nature, but the opinion in the Cato case does not at all justify the granting of a peremptory instruction in the case at bar.
New York Life Ins. Co. v. Bain, 152 So. 845; New York Life Ins. Co. v. Best, 128 So. 565, 157 Miss. 511; Metropolitan Life Ins. Co. v. Lambert, 157 Miss. 759, 128 So. 750; Equitable Life Assurance Co. v. Serio, 155 Miss. 515, 128 So. 485; Provident Life Acc. Ins. Co. v. Anding, 144 Miss. 277, 109 So. 670; Lamar Life Ins. Co. v. Catlett, 139 So. 455; Mutual Benefit Health Acc. Assn. v. Mathis, 142 So. 494; 18 C.J., p. 1044; Kelly v. Supreme Court, I.O.F., 195 Ill. App. 501; Fogleson v. Modern Brotherhood of America, 129 Mo. App. 548.
The question of whether insured was permanently disabled is usually for the jury.
8 Cooley's Briefs on Insurance (2 Ed.), p. 5609; 7 Cyc. of Insurance Law by Couch, par. 1689.
The judgment must be reversed on account of recovery of premiums.
Our Supreme Court has twice held that there can be no recovery of premiums paid under protest or premiums voluntarily paid the insurer pending a dispute as to whether the insured is entitled to a waiver of premiums.
Aetna Life Ins. Co. v. Cap Thomas, 166 Miss. 53, 144 So. 50; Featherstone v. Stonewall Life Ins. Co., 165 Miss. 164, 147 So. 305.
By assignment No. 1 complaint is made at the action of the trial court in overruling the special demurrer of the defendant to the declaration. This complaint is based upon the fact that the declaration in one count against the Columbian Mutual Life Ins. Company relies upon two separate and distinct contracts or policies of insurance, made exhibits, one policy being issued by the Columbian Mutual Life Assurance Society, a fraternal benefit society, incorporated under the laws of Mississippi and issued November 13, 1925, and containing separate, distinct and different provisions from those incorporated in the other policy contract sued for which was issued by the Columbian Mutual Life Insurance Company, a mutual insurance company, on May 17, 1928.
After the special demurrer was overruled the notice was given under the plea of the general issue of a misjoinder and the plaintiff without amending his declaration moved to strike the notice from the files. To our surprise the court sustained this motion and struck the notice from the files and this without any amendment to the declaration, or explanation as to why the plaintiff had a right to recover on both contracts as against the Columbian Mutual Life Insurance Company.
Questions calling for evidence tending to show improbability of or throw doubt on statements made in the examination in chief are proper on cross-examination, especially where such statements were in the nature of expert opinions.
Schrandt v. Young, 86 N.W. 1085, 62 Neb. 254.
Oscar F. Street, of Ripley, for appellee.
The appellant insurance company in January, 1931, recognized appellee Gunn's total and permanent disabled condition as defined by both the insurance contracts here sued upon, and continued to recognize his total and permanently disabled condition as defined and provided therein, up to December 1, 1933, a period of twenty-three months, and during said time paid appellee Gunn the annuity therein provided and waived payment of premiums as per the contract. This fact is established by the record of this case and is nowhere denied.
That diabetes mellitus is an incurable disease, is fully established by this record by all physicians who testified in this case and by recognized medical authorities read into the record and nowhere in the record is this statement denied.
The judgment as entered by the lower court was justly, properly and correctly reached.
Mutual Benefit Health Accident Assurance Co. v. Mathis, 142 So. 494; Metropolitan Casualty Ins. Co. v. Cato, 113 Miss. 283; Metropolitan Life Ins. Co. v. Lambert, 157 Miss. 579.
It is familiar learning that insurance policies are to be construed most strongly against the insured who usually draws the contract and provides the exceptions contained in the clauses in such policies.
Great Southern Life Ins. Co. v. Campbell, 114 So. 263; 7 Couch on Insurance, sec. 1670, p. 5769.
Appellant would emphasize that the word "direct" a gainful occupation is significant in the disability clause in this case and in this connection we wish to point out this language contained in the disability clause of the insurance contract sued on in the Cato case, 113 Miss. 283: "Continually and wholly disabled and preventing the insured from performing any and every kind of duty pertaining to his occupation."
Certainly this language would embrace the "direction of any gainful occupation" and if anything, is even stronger than the language used in the disability clause of the insurance contract sued upon in this case.
It is not what a person does that entitled him to recovery, but it is the condition in which he is, and whether the activities will seriously endanger his health or life.
New York Life Ins. Co. v. Bain, 169 Miss. 271; Mutual Benefit Health Accident Assurance Co. v. Mathis, 142 So. 494; Foreman v. New York Life Ins. Co., 255 N.W. ___.
There was no conflicting question of facts to be submitted to the jury; but it became a question of law for the court to determine whether the plaintiff or the defendant was entitled to recover. It was the duty of the court to grant a peremptory instruction, either for the plaintiff or for the defendant, on the positive testimony as to plaintiff's condition and there was nothing that the court could do except to grant the peremptory instruction for the plaintiff.
M. O.R.R. Co. v. Clay, 156 Miss. 463, 125 So. 819.
A defendant is entitled to a peremptory instruction where the court, on the testimony, would have been compelled to set aside a verdict returned for the plaintiff.
Flora v. American Express Co., 92 Miss. 66, 45 So. 149; Board of Mississippi Levee Com. v. Montgomery, 145 Miss. 578, 110 So. 845; Carrere v. Johnson, 149 Miss. 105, 115 So. 196; Great Southern Life Ins. Co. v. Campbell, 148 Miss. 173, 114 So. 262.
For the first time the question that judgment must be reversed on account of recovery of premiums is now being raised, and we submit that it is a question, which if raised at all, should be raised by plea or otherwise, in the lower court.
This court is a court of appeals and has only appellate jurisdiction; and it can only consider matters before the court, when the court tried the matter.
Estes et al. v. Memphis C. Ry. Co., 152 Miss. 814, 119 So. 199; Miss. Valley Trust Co. v. Brewer et al., 157 Miss. 890, 128 So. 82; Mitchell v. Finley, 161 Miss. 529, 126 So. 821; Pearl Realty Co. v. Wells, 164 Miss. 300, 145 So. 102; Attala County v. Woodfin, 150 Miss. 287, 116 So. 285.
The case at bar is on "all-fours" with the case of Aetna Life Insurance Company v. Commander et al., 169 Miss. 847, in which case appellee sues appellant by declaration, consisting of but one count on two fire insurance policies, both of which covered the same dwelling house and one of which covered, in addition, the household and kitchen furniture situated therein.
The court in the case at bar committed no error in overruling the demurrer.
The declaration charged recognized liability of the Columbian Mutual Life Insurance Company, on both of the policies sued upon. The defendant nowhere, by plea or otherwise, denied liability. The proof showed that the Columbian Mutual Life Insurance Company, by converting from a fraternal to a mutual insurance company, merged and continued in force, and assumed the liability of the Columbian Mutual Assurance Society.
The proof of disability was identical in connection with both policies; a liability on one is a liability on both.
Judgment would not be reversed where errors were not so serious and prejudicially harmful as to have substantially affected result in case.
Miss. Central R. Co. v. Roberts, 160 So. 604.
Thos. E. Pegram, of Ripley, for appellee.
The duty of a trial judge to direct the verdict when there is no material conflict in evidence on any material issue, or when there is but one verdict which the jury may reasonably render on the whole evidence is so familiar to this court that the writer does not deem citation of authorities necessary.
The principles of law controlling this case have by this court been recently, frequently, and plainly announced — so plainly that he who runs may read and understand in the following cases:
Metropolitan Cas. Ins. Co. v. Cato, 113 Miss. 283, 74 So. 114; Equitable Life Ins. Co. v. Serio, 155 Miss. 515, 124 So. 485; Metropolitan Life Ins. Co. v. Lambert, 157 Miss. 759, 128 So. 750, 752; Lamar Life Ins. Co. v. Catlett, 139 So. 455; Mutual Ben. Health Accident Assn. v. Mathis, 169 Miss. 187, 142 So. 494; New York Life Ins. Co. v. Bain, 169 Miss. 271, 152 So. 845.
The health and disability provisions of the policies in the seven above cases were substantially the same as those of the policies in this case. In some of the policies in those cases, there were other provisions such as confinement in the house, weekly visits of physicians, etc., but they were not material to the pronouncement of the law controlling in those cases, nor are they material here.
It apparently is quite generally agreed that it is sufficient to constitute total disability if insured is disabled to such an extent that he cannot substantially perform all acts, or common duties, or all kinds of labor necessary in the prosecution of his business, or do all the things which are material, substantial, and necessary to carry on his business, occupation, or vocation.
It may be said generally speaking, that provisions in life, health, and accident insurance policies for indemnity in case the insured becomes totally, permanently, or wholly disabled, etc., do not require that he shall be rendered absolutely helpless, but, rather, merely require such a disability as renders him unable to perform the substantial and material acts of his business or occupation in the usual and customary way.
7 Couch on Insurance, sec. 1670, p. 5769; U.S. Gas Co. v. Hanson, 20 Colo. App. 293, 79 P. 176; Davis v. Midland Cas. Co., 190 Ill. App. 338; Commercial T.M. Acc. Assn. v. Springsteen, 23 Ind. 657, 33 N.E. 973; Workingmen's M. Protective Assn. v. Roos, 63 Ind. App. 18, 113 N.E. 760; Young v. Travelers Ins. Co., 80 Me. 244, 13 A. 696; Lobdill v. Laboring M.M. Aid Assn., 69 Minn. 14, 38 L.R.A. 567, 65 Am. St. Rep. 452; Bellows v. Travelers Ins. Co., 203 S.W. 978; Coad v. Travelers Ins. Co., 61 Neb. 563, 85 N.W. 558; Theyer v. Standard L. A. Ins. Co., 68 N.H. 577, 41 A. 182; North Am. Acc. Ins. Co. v. Miller, 197 S.W. 750; Hefner v. Fidelity C. Co., 110 Tex. 596, 222 S.W. 966; Clark v. Travelers Ins. Co., 94 Vt. 383, 111 A. 449; Hartford Acc. Ind. Co. v. Davis, 184 Ky. 487, 210 S.W. 950; James v. U.S. Cas. Co., 113 Mo. App. 622, 88 S.W. 125; Fidelity Cas. Ins. Co. v. Mount-Castle, 200 S.W. 862; Kelly v. Sup. Ct. I.O.F., 195 Ill. App. 501; Pacific Mut. Life Ins. Co. v. Branham, 34 Ind. App. 243, 70 N.E. 174; Brotherhood L.F. E. v. Aday, 97 Ark. 425, 34 L.R.A. (N.S.) 126; Mutual Benefit Assn. v. Nancarrow, 18 Colo. App. 274, 71 P. 423; Fidelity Cas. Co. v. Logan, 191 Ky. 92, 229 S.W. 104; Jacobs v. Loyal P. Ins. Co., 97 Vt. 516, 124 A. 848; Interstate B. M. Acc. Assn. v. Sanderson, 144 Ark. 271, 222 S.W. 51; American Liability Co. v. Bowman, 65 Ind. App. 109, 114 N.E. 992.
A party cannot sit supinely by, fail to raise a material issue by demurrer or plea, fail to object to evidence in support of the issue, and for the first time raise the question in the appellate court.
Estes v. Memphis C. Ry. Co., 152 Miss. 814, 119 So. 199; Miss. Valley Trust Co. v. Brewer, 157 Miss. 890, 128 So. 82; Mitchell v. Finley, 161 Miss. 529, 126 So. 821; Pearl Realty Co. v. Wells, 164 Miss. 300, 145 So. 102; Attala County v. Woodfin, 150 Miss. 287, 116 So. 285.
If a person by his conduct induces another to believe in the existence of a particular state of facts and the other acts thereon to his prejudice, the former is estopped as against the latter to deny that that state of facts does in truth exist.
21 C.J. 1060-2, and 1113-A.
The appellant knew that if appellee was disabled he should not pay the premium; knew that the question of disability would likely be settled by a court and, if so settled in favor of appellee, that it was not entitled to the premium.
If it is the rule in Mississippi that premiums voluntarily paid by an insured cannot be recovered back, the writer insists that any rule, in order to maintain respect and its wholesomeness, should be subject to sound exceptions as occasion arises therefor.
Argued orally by Fred B. Smith and J. Morgan Stevens, for appellant, and by Thos. E. Pegram, for appellee.
Appellee brought this action in the circuit court of Tippah county against appellant on two life insurance policies containing disability benefit provisions to recover the amounts provided for by such clauses. The declaration alleged that appellee had become totally and permanently disabled by the disease of diabetes to carry on his business. The face value of one policy upon death was one thousand dollars and the other five thousand dollars. In his declaration, appellant sought, in addition, to recover back the disability premiums paid on the larger policy after December 1, 1933, which he claimed had been paid under protest. At the conclusion of the evidence, the court directed a verdict for appellee for the amount sued for. Judgment was accordingly rendered. That action of the court is the principal ground urged for a reversal of the judgment.
Both of the policies contained the usual permanent disability clauses. In addition, the larger policy defines total and permanent disability to be such a physical condition as prevents the insured from "following or directing any gainful labor, trade, occupation, business or profession." In determining whether a directed verdict should be granted, the evidence must be taken most strongly in favor of the party against whom it is asked. Every material fact which there is substantial evidence to establish, either directly or by reasonable inference should be treated as proven in his favor. We only refer to the following of the numerous decisions of our court recognizing and applying those principles: Jefferson Standard Life Ins. Co. v. Jefcoats, 164 Miss. 659, 143 So. 842; Fore v. Illinois Central R. Co., 172 Miss. 451, 160 So. 903; Justice v. State, 170 Miss. 96, 154 So. 265; Keith v. Yazoo M.V.R. Co., 168 Miss. 519, 151 So. 916; Lee County Gin Co. v. Middlebrooks, 161 Miss. 422, 137 So. 108; Lowe v. Mobile O.R. Co., 149 Miss. 889, 116 So. 601; Gulf S.I.R. Co. v. Prine, 118 Miss. 90, 79 So. 62; Dean v. Brannon, 139 Miss. 312, 104 So. 173, 175.
We see no good purpose that would be answered in going fully into the evidence on this question. We think it manifest that there was substantial evidence tending to show that appellee was not totally and permanently disabled in the meaning of these policies. It was clearly a question for the jury.
Appellant contends that the recovery of the disability premiums paid by appellee after the first of December, 1933, was unauthorized. The evidence showed that prior to December, 1930, and continuously since, appellee has suffered from diabetes mellitus. In the latter part of 1930 he claimed to be permanently and totally disabled from that disease and unable to carry on his business — that of a farmer and a trader. He made proof of his disability, and on January 1, 1931, appellant began to pay him the disability benefits provided by the policy, which were continued until the thirty-first of October, 1931. From that date until the twenty-second of October, 1932, payments were discontinued. On the latter date they were resumed and discontinued again on December 1, 1933. This suit was brought to the July term, 1934, and the cause was tried at the January term, 1935. The larger policy provides that upon proof of total and permanent disability the payment of disability premiums shall cease. On the first of December, 1933, appellant notified appellee that upon investigation it had ascertained that he was not totally and permanently disabled, and from that date failed and refused to pay him any further disability benefits. Appellant demanded at the same time that he continue the payment of his benefit premiums, otherwise that provision in his policy would be avoided.
In his declaration appellee alleged that these benefit premiums were paid by him under protest. We do not find, however, that the allegation was supported by the evidence; therefore Featherstone v. Stonewall Life Ins. Co., 165 Miss. 164, 147 So. 305, 306, and Aetna Life Ins. Co. v. Thomas, 166 Miss. 53, 144 So. 50, 146 So. 134, are controlling. They hold that where such premiums are paid voluntarily, they cannot be recovered back. However, we do not mean to hold that if appellee notified appellant that he was going to sue for the benefits during disability, and that he protested against the payment of the premiums and was only paying them to save his rights under the contract, the payment would be voluntary. In the Featherstone case it was held that an allegation in the declaration that the insurance company exacted of the insured the payment of the benefit premiums was not sufficient to show that they were paid under protest. The court said: "This was not a sufficient charge that these payments were involuntary." We think, therefore, that these cases leave the question open as to whether the insured is entitled to recover back the premiums in a case where he has protested against their payment with notice of his intention to sue and recover them back along with the disability benefits.
One of the policies was issued by the Columbian Mutual Life Insurance Company and the other by the Columbian Mutual Life Assurance Company. Appellant contends that there was a misjoinder of defendants. There is no allegation in the declaration nor proof that the same insurance company operated under different names when the policies were issued, and that appellant was therefore the company that issued both policies. In the absence of such an allegation and proof, there was a misjoinder.
The total and permanent disability upon which the declaration was grounded, as stated, was diabetes mellitus. Over appellant's objection, appellee was permitted to prove by physicians that he also had neuritis, arthritis, nephritis, and arteriosclerosis. The objection was upon the ground that those diseases were not relied on in the declaration as ground of recovery. The evidence showed, however, that those diseases were the outgrowth of diabetes, in other words, that diabetes was the real cause of his disability and those diseases were mere results therefrom. We do not think the court erred in admitting this evidence.
Dr. Adams testified as a witness for appellee. Appellant offered to show on his cross-examination that he was suffering from diabetes and to show his activities and his ability to carry on his profession notwithstanding. The court refused to permit appellant to do so. That ruling of the court is assigned and argued as error. We are of opinion that there was no error in the ruling. The histories of individual cases, we think, would be of little value as evidence — there are too many individual elements to be taken into consideration.
Over appellee's objection, the court refused to permit lay witnesses to testify as to appellee's manner and method of doing business and his general appearance, along with his activities. We think such testimony might be of substantial value along with the other evidence in the case as tending to show whether appellee was totally and permanently disabled. We think, therefore, it should have been admitted, and, furthermore, that it should have gone back, as contended by appellant, a reasonable length of time prior to December 1, 1933, when the disability benefits were discontended. Appellant's physical condition shortly before might have had a material bearing on his physical condition subsequent thereto. The court, in its sound discretion, should have permitted the lay witnesses to give evidence of any fact bearing on appellant's physical condition after December 1, 1933, whether such facts existed shortly before or after that date. Appellant's acknowledgment that appellee was totally and permanently disabled during 1933 did not preclude it from all evidence having a bearing on his condition afterwards.
As we view the record in this case, the other questions will necessarily disappear on another trial; therefore we do not notice them.
Reversed and remanded.