Opinion
No. 28756.
June 2, 1930.
1. APPEAL AND ERROR. Supreme Court could not reverse judgment as involving action at law, where county court and circuit court treated case as one in equity ( Constitution 1890, section 147).
Where a county court takes jurisdiction of a case as one of equity and decides it correctly, and on appeal to the circuit court the judgment is there affirmed, this court cannot reverse the judgment on the ground that it is an action at law, under section 147 of the Constitution of 1890.
2. INSURANCE. Insured inflicted with incurable arthritis held entitled to disability benefit, though able to do slight amount of household work.
In an insurance policy providing "disability shall be considered total whenever the insured is so disabled by bodily injury or disease that he is wholly prevented from performing any work, from following any occupation or from engaging in any business for remuneration or profit, etc.," the insured who is afflicted with incurable arthritis which prevents her doing her ordinary work and which can only be cured, if at all, by medical treatment followed by complete rest, is entitled to the disability benefit, although she may and does do a slight amount of household work each day. Equitable Life Assurance Society v. Serio, 124 So. 485, cited.
APPEAL from circuit court of Jones county, Second district. HON.W.J. PACK, Judge.
Deavours Hilbun, of Laurel, for appellant.
It is the contention of the appellant that the statement of facts does not show the appellee to be totally and permanently disabled within the terms of the policy sued on, as interpreted by our courts, so as to entitle her to benefits claimed thereunder.
The supreme court of Mississippi, in the case of Metropolitan Life Insurance Company v. Cato, 113 Miss. 283, 74 So. 114, in construing a similar clause to the one in question, held that the disability which would entitle an insured to recover, must be both total and permanent at the same time. Equitable Life Assurance Society v. Serio, 124 So. 485.
The trial court further erred in overruling the demurrer of the appellant to the amended bill of complaint.
The demurrer was based on two specific grounds — that the complainant had an adequate remedy at law; and that there was no equity in the bill.
The allegations of the cancellation of the policy was the only amendment made by appellee in her amended bill in order to secure the aid of equity.
The appellee cannot support her action by two contradictory allegations in the same bill and depend upon both at the same time. Such repugnancy is demurrable and violates all rules of pleading. Illinois Central R.R. v. Abrams, 84 Miss. 456, 36 So. 542.
Montgomery Buchanan, of Laurel, for appellee.
The judge of the county court sitting in equity has the same power and authority as the chancellor in all matters of equity wherein the amount or value of the thing in controversy shall not exceed the sum of one thousand dollars. Hemingway's Code, 1927, sec. 725; Moore v. General Motors Company, 125 So. 411.
A chancellor's finding of fact upon conflicting evidence will not be disturbed by the supreme court on appeal. Stevenson v. Swilley, 126 So. 195; Jackson v. Banks, 109 So. 905; Bank v. Cola, 71 So. 261; Gulfport Transport Company v. Fireman's Fund, 121 Miss. 655, 83 So. 730; Stevens v. Magee, 81 Miss. 644, 33 So. 73; Interstate Cattle Company v. Lapsley, 24 So. 533.
A total disability exists if insured's injuries are of such a character that common prudence requires him to desist from his labors and rest as long as it is reasonably necessary to effect a speedy cure. 1 C.J. 465; Mutual Ben. Assoc. v. Nancarrow, 18 Colo. App. 274, 71 P. 423; Young v. Travelers' Ins. Co., 80 Me. 244, 13 A. 896; Lobdill v. Laboring Men's Mut. Assoc., 69 Minn. 14, 71 N.W. 696, 65 Am. S.R. 542, 38 L.R.A. 537; Wolcott v. United L., etc., Ins. Assoc., 55 Hun. 98, 8 N.Y.S. 263; Equitable Life Assurance Society v. Serio, 124 So. 485.
Mrs. Sarah E. Best, the complainant, filed her bill on the equity side of the county court to recover a benefit of ten dollars per month payable under a life insurance policy issued by the appellant upon her life, which also contained a ten dollar per month benefit. The pertinent part of the policy upon liability is as follows:
"And upon receipt of due proof that the insured is totally and presumably permanently disabled before age sixty as defined under `Total and Permanent Disability' on the second page hereof, the company agrees to pay to the insured a monthly income of ten dollars increasing after five and ten years of continuous disability, and to waive payment of premiums, as provided herein."
"Disability shall be considered total whenever the insured is so disabled by bodily injury or disease that he is wholly prevented from performing any work, from following any occupation or from engaging in any business for remuneration or profit, provided such disability occurred after insurance under this policy took effect and before the anniversary of the policy on which the insured's age at next birthday is sixty."
The appellee belonged to a religious organization which believed in divine healing, and after the issuance of the policy and before the age of sixty she became afflicted with a disease known as arthritis in both feet, and claimed that she was unable to do her work, and while she could and did do a small amount of work around the household she could not stand upon her feet for any length of time on account of the great pain occasioned from the said disease affecting her feet and ankles. She made a claim to the company but they declined to recognize the claim and required her to submit claim showing an examination by a physician. She thereon went to Dr. Butler, a physician, and he found her suffering with this disease, and he testified that it was incurable and he found her feet and ankles swollen, inflamed and sensitive. He also testified that to stand upon one's feet when afflicted with this disease is painful and that he "would have hated mighty bad to have had to try to work in that condition but there is no use to say you couldn't stand on the feet in such condition because they could for a limited time, but they were standing in torture when they do."
It seemed that about a month after Dr. Butler's examination the complainant, Mrs. Best, went to another physician who likewise made a statement to the court of her condition. The company, in June following the examination in February, sent a physician appointed by them to see the complainant and he made a written report in which he showed that she was so afflicted and had had the two previous medical examinations, but he certified that in his opinion she was not disabled from doing work and that she was not entitled to the claim on account of disability. This physician was of the opinion that the disease could be cured by proper treatment which would necessitate the use of a prescription by a competent physician and absolute rest in bed by the patient. This last physician made no physical examination but based his opinion upon statements made by the complainant in answer to his questions.
The county judge rendered a written opinion in which he found that the complainant was a worthy and credible witness, and found according to Dr. Butler's testimony as to the condition of the patient and the incurable nature of the disease, and stating that the other physicians did not seem to have made a careful examination, and while they were worthy and credible men and trustworthy witnesses that he thought the examination was not accurate, and that of Dr. Butler was true and correct, and he rendered judgment in favor of the complainant.
It appears that prior to the bringing of the suit the appellant insurance company had undertaken to cancel the policy, and that after the disease had been in progress for some months a premium became due which was not paid. The provision of the policy above referred to shows that when the disability accrues the premium is waived.
The appellant challenges the jurisdiction of the county court to entertain the suit and argues at some length that it is not a matter of equity jurisdiction but one for the law courts. We think, under the decision of this court in Moore v. General Motors Acceptance Corporation, 155 Miss. 818, 125 So. 411, holding that where a circuit court affirmed the county court and thereby held with county court that the case was an equity case, the Supreme Court could not reverse judgment on appeal, under section 147 of the Constitution of 1890, on the ground that the case was one of law and not of equity; and because the court here has taken jurisdiction and rendered final judgment and such judgment has been affirmed by the circuit court, this precludes us from reversing the case upon this ground. It is also earnestly argued that the proof is insufficient to sustain the judgment because the complainant did a portion of her household work, and therefore that she was not totally and permanently disabled under the terms of the policy. We have examined the testimony and think it was sufficient for the county court to base its finding upon, and that this case in this aspect of it is controlled by the pronouncement in Equitable Life Assur. Soc. v. Serio (Miss.), 124 So. 485, and authorities cited in that case.
The judgment of the court below will therefore be affirmed.
Affirmed.