Atlantic Life Ins. Co. v. Serio

• Decision Date: 12 November 1934
• Docket Number: 31393
• Citation: 157 So. 474,171 Miss. 726
• Court: Mississippi Supreme Court
• Parties: ATLANTIC LIFE INS. CO. v. SERIO

157 So. 474

171 Miss. 726

ATLANTIC LIFE INS. CO. v. SERIO

No. 31393

Supreme Court of Mississippi

November 12, 1934

Division A

Suggestion Of Error Overruled February 18, 1935.

APPEAL from the circuit court of Adams county HON. R. L. CORBAN Judge.

Action by John H. Serio against the Atlantic Life Insurance Company etc. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded.

Brandon & Brandon, of Natchez, for appellant.

The evidence for the plaintiff fails to show by a preponderance of evidence that the plaintiff during the time sued for was totally and permanently disabled so that he was prevented for life from engaging in any gainful occupation and therefore he is not entitled to any recovery.

The court erred in admitting in evidence over the objection of the defendant the letters of the plaintiff addressed to the defendant in which the plaintiff made assertions of the fact of disability, the fact of illness, the fact that he was incapable of engaging in occupation for profit, and in which the plaintiff made offers of compromise settlement.

Presley v. Quarles, 31 Miss. 151; Belt Automobile Indemnity Assn. v. Ensley Transfer & Supply Co., 99 So. 787, 211 Ala. 84.

This policy lapsed for nonpayment of the premium which matured December 24, 1928, and no recovery could be had by the plaintiff beyond the month of May, 1928.

This action was when commenced barred by the statute of limitations of the state of Mississippi.

17 R. C. L., sec. 125, page 760; 15 L. R. A. (N. S.) 156, 126 A. S. R. 944.

Engle & Laub, of Natchez, for appellee.

Recovery under insurance policy by reason of total and permanent disability does not require a condition of complete helplessness, nor such an entire physical or mental inability in respect to pursuit of an occupation or employment that the insured can do absolutely nothing.

Equitable Life Assurance Society v. Serio, 159 Miss. 515, 124 So. 485.

It is the doctrine of the text writers, and of adjudicated cases, that the principle of the rule which requires that a party shall have previous notice to produce a written instrument in his possession, before the contents can be proved as evidence in the case, will not apply to cases where, from the nature of the proceeding, the defendant has notice, that the plaintiff means to charge him with the possession of the instrument.

2 Phillips on Evidence with C. & H.'s. and E.'s. notes, chap. 7, page 539; 14 East. 274; Pons v. State, 49. Miss. 1; 22 C. J., Evidence, page 1060, section 1360, and page 1062, section 1367; Aetna Life Ins. Co. v. Thomas, 144 So. 50, 166 Miss. 53.

The verdict of the jury in the instant case now here on appeal was not contrary to the evidence.

Waul v. Kirkman, 13 S. & M. 599; Pruitt v. Coopwood, 30 Miss. 387; Garland v. Stewart & Yeager, 31 Miss. 314.

Where a party's right depends upon the happening of a certain event in the future, the cause of action accrues and the statute begins to run only from the time when the event happens.

37 C. J. 811, par. 154.

Argued orally by Gerard Brandon, for appellant, and by C. F. Engle and S. B. Laub, for appellee.

OPINION

Smith, C. J.

The appellant issued a disability insurance policy to the appellee, and this is an appeal from a judgment against it awarding the appellee a recovery for payments alleged to be due him under the policy.

The policy was issued in December, 1919. Afterwards the appellee developed tuberculosis, which in May, 1923, so disabled him as to entitle him to the disability payments provided in the policy, and such payments were made him up to January, 1927. In February, 1927, the appellant advised the appellee that it no longer recognized his claimed disability and would not thereafter make further payments to him under the policy. The appellee frequently thereafter called on the appellant for the payments under the policy, advising it of his continued incapacity, and requesting forms for making the proper proof thereof, with which requests the appellant did not comply. In October, 1933, the appellee instituted this action to recover from the appellant all of the payments alleged to be due him under the policy since January, 1927.

As to the payments due more than six years before suit was begun, no recovery was allowed and no cross-appeal had been prosecuted.

The appellant's complaints are: First, the refusal of the court to grant its request for a directed verdict; second, the refusal of the court to instruct the jury that the appellee could not recover for disability payments claimed "between the months of June, 1928, and that of February, 1929;" third, the refusal of the court to instruct the jury that the appellant could not recover for any payments alleged to be due under the policy since the month of June, 1928; and, fourth, the admission of certain evidence introduced by the appellee.

The appellant's request for a directed verdict is based on two grounds: First, the evidence does not disclose that the appellant is disabled from earning a livelihood within the meaning of the policy; and, second, the cause of action is barred by the six-year statute of limitation (section 2292, Code of 1930).

On the evidence, the disability vel non of the appellee was so clearly for the jury that it will not be necessary to set out the evidence relative thereto.

The policy provides for disability payments thereunder of ten dollars each month, and, in support of its statute of limitations claim, the appellant says that the appellee's cause of action accrued in February, 1927, when it disavowed further liability and indicated to the appellee that it would make no further payments under the policy. Its argument is in substance, this: That, when it advised appellee it would make no further payments under the policy, it breached its contract, assuming the appellee was entitled to such payments, and the appellee's cause of action against it then accrued; that its liability for each monthly payment is dependent on its liability for the preceding monthly payment; that, when it breached its contract, the appellee had the right to sue for the payments then due and for those thereafter to become due; that he would have been entitled to recover for the future installments on proof that he was permanently disabled, and, if not permanently disabled, for the installments to become due prior to the time the...