O'Briant v. Hull, 44815

• Decision Date: 25 March 1968
• Docket Number: No. 44815,44815
• Citation: 208 So.2d 784
• Parties: Mrs. Lillie F. O'BRIANT, Individually, and as Administratrix of the Estate of Willis E. Fowler, Deceased, v. J. M. HULL, Lucille McRae, Maryland Casualty Company, United States Fidelity and Guaranty Company, Robert Barksdale Company, Inc., and F. W. Williams State Agency.
• Court: Mississippi Supreme Court

Page 784

208 So.2d 784

Mrs. Lillie F. O'BRIANT, Individually, and as Administratrix of the Estate of Willis E. Fowler, Deceased, v. J. M. HULL, Lucille McRae, Maryland Casualty Company, United States Fidelity and Guaranty Company, Robert Barksdale Company, Inc., and F. W Williams State Agency.

No. 44815.

Supreme Court of Mississippi.

March 25, 1968.

Rehearing Denied April 22, 1968.

Tighe & Tighe, Jackson, for appellant.

L. P. Spinks, Jr., DeKalb, John H. Stennis, Jackson, for appellee.

PATTERSON, Justice:

This is an appeal by Mrs. Lillie F. O'Briant, individually and as administratrix of the estate of her deceased son, from an adverse decree of the Chancery Court of Kemper County. Mrs. O'Briant sought to recover in that court the sum of $5,000 from the former guardians of her son, a non compos mentis. The bill of complaint charged a breach of duty by the guardians in failing to have the beneficiary changed in a National Service Life Insurance policy of the son. The complainant alleged that subsequent to a divorce being granted between the beneficiary and her son, it became the guardians' duty to have the name of the beneficiary in the policy, that of the former wife, changed to either that of the complainant or to her son's estate.

In response to the bill of complaint the defendants pled, among other things, the affirmative defenses of election of remedies, accord and satisfaction, and estoppel. Each of these defenses was predicated upon a stipulation entered into by Mrs. O'Briant, individually and as the administratrix of her son's estate, wherein she compromised and settled a suit for the sum of $5,000 which she had brought as the designated beneficiary under the same National Service Life Insurance policy. The circumstances regarding that suit and settlement are hereafter related.

In January 1965 Mrs. Lillie F. O'Briant, individually and as administratrix of the estate of her deceased son, brought an action on a National Service Life Insurance policy in the United States District Court of the Northern District of Mississippi against the United States of America and Mrs. Eddie Fowler Keene, the former wife of Willis E. Fowler. In this action she alleged that she had been designated the beneficiary in the policy by a letter from her son subsequent to a divorce obtained by Mrs. Keene from the insured. She alleged that this designation of beneficiary was effective and that she was entitled to the proceeds of the $10,000 policy upon her son's death. In this suit a stipulation was entered into by Mrs. O'Briant, individually and as administratrix, whereby she was to receive $5,000 in her individual capacity in settlement of her claim. Mrs. Eddie Fowler Keene, the former wife and one of the defendants, participated in the stipulation, and the United States of America, the other defendant, concurred therein, and in conformance with the stipulation a judgment was entered in the federal court on August 5, 1965, whereby Mrs. Lillie F. O'Briant, individually, recovered the sum of $5,000 'in accordance with the terms and conditions of the insurance contract.' Mrs. Keene received a like sum as the result of the compromise and settlement.

Thereafter, this suit was brought in the Chancery Court of Kemper County where, after a full hearing, the court held that the appellant had elected a cause of action which she had pursued in the federal court and that she was precluded thereby from recovery in this suit as it was inconsistent with the first. For this and other reasons not necessary to this opinion the bill of complaint was dismissed.

The appellant assigns as error the action of the lower court in holding that the doctrine of election of remedies applies in this case as a defense and as a bar to the cause of action of the appellant.

The basis of the federal suit was that Mrs. O'Briant was the designated beneficiary of the National Service Life Insurance policy. The basis of the present suit is the alleged negligent omission of the son's guardians to have the complainant or his estate designated the beneficiary in the same policy.

The remedies are inconsistent, which brings into consideration the more serious question of whether the complainant made an irrevocable election which would preclude her from pursuing the present suit. In Anaconda Aluminum Company v. Sharp, 243 Miss. 9, 18, 136 So.2d 585, 588, 99 A.L.R.2d 1307 (1962), the doctrine of election of remedies was defined as 'the choosing between two or more different and co-existing modes of procedure and relief allowed by law on the same state of facts. The doctrine is applicable where an aggrieved party has two remedies by which he may enforce inconsistent rights growing out of the same transaction and, being cognizant of his legal rights and of such facts as will enable him to make an intelligent choice, brings his action by one of the methods. * * *' From the definition and character of the doctrine of election of remedies certain conditions must exist before the election becomes operative. These conditions or elements are: (1) the existence of two or more remedies, (2) the inconsistency between such remedies, and (3) a choice of one of them. 25 Am.Jur.2d Election of Remedies section 8 (1966); Rea v. O'Bannon, 171 Mass. 824, 158 So. 916 (1935). In applying these essentials to the facts of this case it is apparent that (1) there existed two remedies, (2) they were inconsistent with each other as they emerged from opposite and irreconcilable...