Opinion
No. 32476.
February 1, 1937. Suggestion of Error Overruled March 15, 1937.
1. INSURANCE.
Life policy providing for benefits for total and permanent disability occurring before insured reached age of 60 held not to require proof of disability to be made before insured reached that age.
2. INSURANCE.
All the provisions of receipt and release of insurer's liability under total and permanent disability benefit provisions of life policies must be construed together.
3. INSURANCE.
Receipt and release providing that pending suit for total and permanent disability benefits under life policies should be dismissed with prejudice but also providing that it was only a compromise and settlement of benefit provisions up to date, and that any subsequent claim under policies should be treated as new claim and new proof filed in connection therewith, did not compromise issue whether insured had become totally and permanently disabled before reaching age of 60.
4. APPEAL AND ERROR.
Question whether insured could recover total and permanent disability benefits accruing under life policies preceding proofs could not be raised for first time on appeal.
APPEAL from circuit court of Lauderdale county. HON. A.G. BUSBY, Judge.
Watkins Eager, of Jackson, and Wilbourn, Miller Wilbourn, of Meridian, for appellant.
Appellee can in no event recover for disability benefits alleged to be due from November 1, 1933, since the alleged proofs were not received by the appellant until in February 1934.
Mutual Life Ins. Co. of New York v. Hebron, 166 Miss. 145, 146 So. 445.
When alleged proofs of disability were received by appellant in February 1934 as well as on November 1, 1933, the date from which disability payments were claimed under said proof, appellee was above the age of sixty years and not entitled to any money monthly disability benefits.
Aetna Life Ins. Co. v. Thomas, 166 Miss. 53, 144 So. 50; Miss. Baptist Hospital v. Moore, 156 Miss. 676, 126 So. 465, 67 A.L.R. 1106.
The receipt and release coupled with the dismissal of the first suit with prejudice constitutes an accord and satisfaction and a bar to any future action insofar as the disability benefits provisions are concerned up to the date of said release and dismissal.
1 C.J. 523; May Bros. v. Doggett, 155 Miss. 849, 124 So. 476; Greener Sons v. Cain Sons, 137 Miss. 33, 101 So. 859; Home Mutual Fire Ins. Co. v. Pittman, 111 Miss. 425, 91 So. 739; Mixon v. Sovereign Camp W.O.W., 155 Miss. 841, 125 So. 413; Maryland Casualty Co. v. Adams, 159 Miss. 96, 131 So. 544; 34 C.J. 787; Dean v. Bush, L.R.A. 1918B 523; Railroad Co. v. U.S., 28 L.Ed. 971, 113 U.S. 261; Section 595, Code of 1930.
Frank K. Ethridge and Geo. B. Neville, both of Meridian, for appellee.
As we understand it, the attorneys for appellant insist that under the terms of the policies involved in this suit the monthly disability payments cease upon the sixtieth birthday of the insured, even though the insured became permanently disabled before his sixtieth birthday and such disability continued without interruption beyond the sixtieth birthday.
Our contention is that if the insured became totally and permanently disabled within the meaning of the policies before his sixtieth birthday, he became entitled to the monthly payments after the giving of notice so long as he remained totally disabled.
Both counts of the declaration allege that the insured became totally disabled before his sixtieth birthday and that this disability continued without any interruption until the filing of the suit and also allege the giving of notice required.
This court has held in a number of cases that before the insured can recover the disability benefits the notice must be given, but it has, so far as we know, never held that the notice must be given before the insured reaches the age of sixty.
We think that a mere reading of this receipt and release will conclusively answer the contention of the appellant that the appellee thereby released any claims that he might have for permanent disability benefits under the policies subsequent to October 19, 1933, the date of the receipt and release, because in three or four places it specifically states that the appellee releases only claims up to its date. If it had been the agreement that appellee was to release any claim for future monthly benefits, it would have been very easy to have said so in plain language, and if such had been the agreement there would have been no limitation of the release to the date of the agreement.
The attorneys for appellant also insist that the judgment of dismissal with prejudice of the first suit constitutes a bar to the present suit. The judgment of dismissal was taken pursuant to the receipt and release. The appellant in its pleadings did not set out in full the judgment but simply alleged that the first suit was dismissed with prejudice.
It is common learning that a judgment is not a bar to a second suit on other claims or issues.
34 C.J., page 798, page 823, par. 1237, pages 932, 933, and 934, par. 1358, and page 935, note 30; Wisconsin v. Torinus, 28 Minn. 175, 9 N.W. 725.
It is conceded that no new proof was given until January, 1934, and as alleged in pleas, not received until February, 1934. We submit that it is now too late for the appellant to contend that the appellee was not entitled to a judgment for the monthly benefits from November 1, 1933, to February 1934. Appellant should have filed a special plea and thereby called the lower court's attention to the matter.
Argued orally by Pat Eager, for appellant, and by Frank K. Ethridge, and Geo. B. Neville, for appellee.
Appellee brought this action against appellant in the circuit court of Lauderdale county to recover the sum of $75 per month covering the period from November 1, 1933, to February 1, 1936, under the total and permanent disability provisions of two life insurance policies issued to him by appellant, one for $5,000 and the other for $2,500. There was a verdict and judgment for the amount sued for, with interest. From that judgment, appellant prosecutes this appeal.
The questions are (1) whether or not proofs, as provided in the policies, of total and permanent disability had to be made before appellee reached the age of 60; (2) whether or not there had previously been an accord and satisfaction between the parties as to the benefits, both past and future, and if not, (3) whether the judgment was for an amount in excess of what appellee was entitled to recover. We will consider those questions in the order stated.
The $5,000 policy provided for the payment of that sum on the death of the insured, and while living, $50 a month for a total and permanent disability occurring before the age of 60; and the $2,500 policy provided for the payment of that sum on the death of the insured and $25 a month for a total and permanent disability occurring before the age of 60.
Appellee was born May 30, 1872, therefore he was 60 years of age on May 30, 1932. He claimed to have become totally and permanently disabled because of a disease of the heart on January 1, 1931. He made proofs of the disability on the 14th of May, 1932. Appellant, after receipt and consideration of the proofs, refused to pay the benefits, whereupon appellee brought suit to recover them. This suit was pending on the 19th day of October, 1933, when appellee and his wife executed and delivered to appellant the following "Receipt and Release:"
"The undersigned Edward A. Slaughter, and his wife, Annie Rebecca Slaughter, hereby acknowledge receipt of the sum of one thousand dollars ($1,000.00), cash in hand paid to them by The Equitable Life Assurance Society of the United States, in full and complete settlement of all claims, demands and causes of action of every nature whatsoever under the terms and provisions of two policy contracts of life insurance issued by said company to the said Edward A. Slaughter as the assured, and wherein the said Mrs. Annie Rebecca Slaughter is beneficiary, the first of said policies being dated November 13, 1925, in the face amount of five thousand dollars ($5,000.00), and numbered 3 863 733, and the other policy dated May 14, 1926, in the face amount of twenty-five hundred dollars ($2,500.00), and numbered NM 4 053 678, insofar as the total and permanent disability benefits provisions of said policy contracts are concerned, up to the present date.
"By the provisions of said policies in case of total and permanent disability on the part of the named assured, as therein provided, certain monthly instalments are provided for the benefits of the assured upon satisfactory proof of such disability, as therein expressly provided, and the above mentioned sum of one thousand dollars ($1,000.00) is paid, and received by the undersigned, in full and complete settlement of all such total and permanent disability benefits provisions under both of said policies up to the present date of October 19, 1933, with the further understanding that the acceptance of said sum shall in no wise be construed as any waiver or relinquishment of any future right on the part of the said named assured to make claim for any other benefits provided by the terms of said policies, or either of them, in the future.
"Suit was filed by the undersigned Edward A. Slaughter in the Circuit Court of Lauderdale County, at Meridian, Mississippi, and against the said The Equitable Life Assurance Society of the United States to recover the disability benefits provisions of both said policy contracts, and said suit shall be dismissed with prejudice, at the cost of the defendant.
"It is further distinctly understood and agreed that the payment of said sum and the consummation of this settlement shall in no wise be construed as any admission of liability whatsoever on the part of the said Equitable Life Assurance Society of the United States, but that same is in full and complete compromise of all said demands by reason of said disability benefits provisions up to the present date; and shall neither be construed as any admission of liability by reason of any claims which may be propounded by the assured hereafter, and without prejudice on the part of the said Equitable Life Assurance Society of the United States to defend any future action.
"It is further distinctly understood and agreed that any claim now or hereafter to be submitted in connection with said policies or either of them by the undersigned assured shall be treated and submitted as a new claim and new proofs filed in connection therewith."
Appellant's contention is that by this "Receipt and Release" it was discharged from all liability, both past and future, under the total and permanent disability provisions of the policies, while appellee's position is that only such liability up to the first of November, 1933, was discharged.
Proofs of the continuation of the original disability were made in January, 1934. This suit was brought to the April, 1936, term of the court and, as above stated, was to recover the benefits claimed for the period from November 1, 1933, to February 1, 1936; in other words, the period since the execution of the "Receipt and Release." It will be observed from what has been stated that the first proofs of total and permanent disability were made before, and the last proofs after, appellee had reached the age of 60 years. The provisions of the policies with reference to total and permanent disability follow:
"And further, if the Insured becomes wholly and permanently disabled before age 60 the Society will waive subsequent premiums and pay to the Insured a Disability-Annuity of Fifty Dollars a month, subject to the terms and conditions contained on the third page hereof. This insurance is granted in consideration of the payment in advance of One Hundred Fifty-eight and 20/100 Dollars and of the payment semi-annually thereafter of a like sum upon each thirteenth day of May and November until the death of the Insured. These payments include a semi-annual premium of $2.60 for the Double Indemnity and of $11.70 for the Total and Permanent Disability provision granted under this contract. Upon any anniversary of this policy said Double Indemnity and Disability provisions may be discontinued by returning this policy to the Society for proper endorsement, with a written request signed by the Insured (or assignee if any) and thereafter the payment of the premiums for such provisions shall not be required. The Privileges and Conditions stated on the subsequent pages hereof form a part of this contract as fully as if recited at length over the signatures hereto affixed."
Page 3 of the policies, under the heading "Privileges and Conditions" contained the following:
"Total and Permanent Disability
"(1) Disability benefits before age 60 shall be effective upon receipt of due proof, before default in the payment of premium, that the insured became totally and permanently disabled by bodily injury or disease after this policy became effective and before its anniversary upon which the Insured's age at nearest birthday is 60 years, in which event the Society will grant the following benefits: — (a) Waive payment of all premiums payable upon this policy falling due after the receipt of such proof and during the continuance of such total and permanent Disability; and (b) Pay to the Insured a monthly Disability-annuity as stated on the face hereof; the first payment to be payable upon receipt of due proof of such Disability and subsequent payments monthly thereafter during the continuance of such total and permanent Disability. (Note) Any premiums so waived and any Disability annuity so paid shall not be deducted from any amount payable in any settlement of this policy. Disability shall be deemed to be Total when it is of such an extent that the Insured is prevented thereby from engaging in any occupation or performing any work for compensation of financial value, and such Total Disability shall be presumed to be Permanent when it is present and has existed continuously for not less than three months; and, further, the entire and irrecoverable loss of sight of both eyes, or the severance of both hands at or above the wrists, or of both feet at or above the ankles, or of one entire hand and one entire foot, will of themselves be considered as Total and Permanent Disability within the meaning of this provision.
"(II) Disability Benefit after age 60. In case the Insured after attaining age sixty, and while this policy is in full force and effect, becomes totally and permanently disabled as above described, and furnishes due proof thereof, the Society, subject to the conditions above stated, will on each subsequent anniversary date of this policy during the continuance of such disability waive payment of the premium, if any, for the ensuing policy year, whereupon the amount of insurance shall become reduced by the amount of premiums so waived and subsequent premiums and loan and surrender values shall be reduced proportionately.
"(III) Recovery from Disability. The Society shall have the right at any time or times during the first two years after receipt of such proof of disability, but thereafter not more frequently than once a year, to require proof of the continuance of such total disability. If the Insured shall fail to furnish satisfactory proof thereof, or if it appears at any time that the Insured has become able to engage in any occupation or perform any work for compensation of financial value, no further premiums will be waived and no further disability-annuity payments will be made hereunder on account of such disability.
"(IV) Military or Naval Service. Disability resulting directly or indirectly from military or naval service in time of war is not a risk assumed by the Society."
In appellant's original brief it seems to contend that the disability must have occurred before the age of 60 and the proofs also must have been made before that time. That is true as to the disability, but not as to the proofs. There is nothing in the policies which requires proofs to be made before the age of 60.
All the provisions of the "Receipt and Release" should be construed together. Although it provides that the pending suit should be dismissed with prejudice, it also provides in at least three different places that it was only a compromise and settlement of the benefit provisions of the policies up to date. The last paragraph provides that it was distinctly understood and agreed that any claim thereafter under the policies "shall be treated and submitted as a new claim and new proofs filed in connection therewith." The suit compromised was for a much larger amount than the sum paid in settlement — $1,000.
We think it plain that only the monthly benefits which had accrued up to the time of the execution of the "Receipt and Release" were compromised and settled, and not the issue of whether appellee had become totally and permanently disabled before reaching the age of 60, continuing up to the time of the compromise. That question was left open. In other words, so far as the future was concerned the matter was left standing exactly as it was; it was still an open question whether the disability was total and permanent and originated before appellee reached the age of 60.
If there were any ambiguity in the "Receipt and Release" it appears to have been cleared up by the correspondence which took place between the parties. Upon its receipt by appellee for the signatures of himself and his wife, he wrote appellant's attorneys that he would not sign the release unless they would treat any disability claim he might make in the future "as a continued disability." Appellant's attorneys wrote appellee's attorneys in reply to that letter. Among other things they stated in the letter "our agreement was for a payment of the sum of $1,000.00 in full and complete settlement of all claims on account of the disability benefit provisions up to the present date, as expressly agreed between us, without prejudice to any future right he may have under the policy contracts, all as set forth in the release which we sent you." The words "any future right" could not have referred to a disability originating after the age of 60; both parties were bound to have known that from the plain provisions of the policies.
The judgment recovered includes the monthly benefits accruing between the compromise and the making of the last proofs, as well as those accruing thereafter up to the first of February, 1936. Appellant contends that under the authority of Mutual Life Ins. Co. v. Hebron, 166 Miss. 145, 146 So. 445, and New York Life Ins. Co. v. Alexander, 122 Miss. 813, 85 So. 93, 15 A.L.R. 314, there could be no recovery for the benefits accruing preceding the proofs. We have no right to decide this question, because it was not raised by appellant in the pleading, and it appears from the record that the point was first made in this court.
Affirmed.