Chattanooga Sewer Pipe Works v. Dumler

Citation153 Miss. 276,120 So. 450
Decision Date11 February 1929
Docket Number27200
CourtUnited States State Supreme Court of Mississippi
PartiesCHATTANOOGA SEWER PIPE WORKS v. DUMLER. [*]

Division A

1 EXEMPTIONS. Law exempting "proceeds of judgment for personal injury" held inapplicable as to recovery on disability provision of indemnity contract (Hemingway's Code 1927, section 1895). Hemingway's Code 1927, section 1895, exempting proceeds of judgment for personal injury from liabilities for debts of person injured, held inapplicable as to money recovered against insurance company on disability provision of indemnity contract; the words "proceeds of a judgment recovered on account of personal injury sustained," meaning damages recovered for some injury inflicted by, or received as a result of, the act or omission of some active agency other than disease or other natural bodily infirmity.

2. STATUTES. Generally, true sense in which words are used in statute is ascertained by taking them in ordinary and popular signification.

True sense in which words are used in statute is to be ascertained generally by taking them in their ordinary and popular signification, unless clearly necessary to enlarge or modify this in order to effect plain intent of Legislature.

3 EXEMPTIONS. Proceeds of judgment recovered under disability provision were not exempt from garnishment under law exempting proceeds of life policy (Hemingway's Code 1927 section 1893).

Proceeds of judgment recovered under disability provision of insurance policy held not exempt from garnishment by virtue of Hemingway's Code 1927, section 1893, exempting the proceeds of a life insurance policy not exceeding five thousand dollars from liability for debts of decedent; the money recovered under ths disability provision being in no way the proceeds of a life insurance policy.

4. ATTORNEY AND CLIENT. Attorney has lien on client's funds for services rendered.

An attorney has a lien on funds of his client for services rendered in proceeding by which money was collected.

5. ATTORNEY AND CLIENT. Attorneys had paramount lien on amount recovered for client under disability provision of insurance policy pursuant to contingent fee contract.

Attorneys recovering money for client under disability provision of insurance policy pursuant to contract for contingent fee had a paramount lien on amount recovered to extent of fee in absence of showing that contract was unreasonable or unconscionable.

HON. W A. ALCORN, JR., Judge.

APPEAL from circuit court of Bolivar county, Second district, HON. W. A. ALCORN, JR., Judge.

Action by the Chattanooga Sewer Pipe Works against L. J. Dumler and others, wherein the New York Life Insurance Company was made garnishee; the garnishee subsequently requesting that plaintiff and defendant named be interpleaded to determine rights of property in money paid into court. Judgment dismissing the writ of garnishment and ordering the money paid to defendant named, and plaintiff appeals. Reversed and rendered.

Judgment reversed.

Somerville & Somerville, for appellant.

The right of action on which Dumler recovered from the insurance company we maintain was not life insurance but was indemnity insurance. The designation of the plan of insurance is: "Ordinary life with total and permanent disability benefits, and double indemnity benefit." The provisions of the policy show that in addition to the life insurance there were many other provisions of indemnity, among them being the agreement to reimburse Dumler in case disease prevented him from working.

Appellee contends and the lower court held that this money should be exempt as the proceeds of a judgment for personal injury. The answers of the appellee simply claim the money as exempt without stating any facts or reasons why the same should be exempt and there is nowhere in the record, as we view it, anything to justify the conclusion that the money now in court is the proceeds of a judgment recovered on account of the personal injury sustained.

This money was recovered on a contract to indemnify Dumler because of his having failed, because of disease, to earn a living from January 23, 1922, to January 23, 1923. We are sure that the court agrees with us that the object and purpose of the exemption statute in question was to create a fund for people who had been injured and were therefore not capable of earning a livelihood. Tishomingo Sav. Inst. v. Young, 87 Miss. 473, 40 So. 9; 112 Am. St. Rep. 454, 6 Ann. Cas. 776, 3 L. R. A. (N. S.) 693; Yale v. McLaurin, 66 Miss. 461, 5 So. 689.

The statute closes by stating that the money shall be exempt from "the debts of the person injured." The fact that the statute refers to the person being injured, we maintain, shows that the legislature contemplated that class of cases where a person is injured, and that some other person's negligence caused the injury. In other words when one person is injured, in the eyes of the law, some other person did the injuring. The legislature was undertaking to cover the class of cases where a person was thus injured, and cases like the case at bar were not contemplated by the legislature.

Shands, Elmore & Causey, for appellee.

Appellant contends that a lien was established on Dumler's right of action against the New York Life Insurance Company by the service of the writ of garnishment, and that, as more than four months elapsed from the time of the service of the writ of garnishment until the adjudication in bankruptcy, such lien was not discharged by the adjudication, contending in support of this that the recovery was not on the policy of life insurance, and therefore was not exempt at the time of the levy of the writ of garnishment.

Appellee contends that this recovery is on the policy of life insurance, that it is an incident growing out of such policy and is clearly exempted by sec. 1893, Hem. Code of 1927, being the same as sec. 2141, Code of 1906. We further contend that whether this be true or not, the money recovered on this judgment was recovered on a judgment for personal injuries, sustained, within the contemplation of sec. 1895, Hem. Code, being chap. 146 of the Laws of 1914, such act being adopted since the Code of 1906 and not appearing in the code.

It is the settled policy of this court that all exemption statutes are to be most liberally construed in favor of the exemptionist. Laurel v. Turner, 80 Miss. 534; Tishomingo Savings Institutions v. Young, 87 Miss. 473; Teague v. Weeks, 89 Miss. 360.

It is urged by the appellant that this is a recovery, not on a life policy, and that nothing is exempt under a life policy from the creditors except the amount which is to be paid in the event of the death of the insured, and that it is only exempt under sec. 1893, Code of 1927, to the heirs and legatees, and that no part of it can be claimed as exempt by the insured. This identical contention was made in Dreyfus v. Barton, 98 Miss. 758. In that case, there was a petition in bankruptcy filed, the bankrupt listing a life policy of the sum three thousand dollars, which was the maximum amount exempt under the earlier statutes, which amount has now been raised to five thousand dollars. At the time of the adjudication, this life policy had a cash surrender value of forty-two dollars. Shortly after the adjudication in bankruptcy, and before the trustee in bankruptcy had realized on the policy, the bankrupt died. The trustee in bankruptcy thereupon asserted claim to the full face of the policy, three thousand dollars. The heirs and distributees of the bankrupt asserted claim. The chancellor held that the trustee in bankruptcy was, by virtue of sec. 70(a) of the bankrupt act, entitled to the forty-two dollars, the cash surrender value, and that the heirs and distributees were entitled to the balance. There was appeal, and cross-appeal, and this court held that the cause should be affirmed on the direct appeal of the trustee in bankruptcy, and reversed as to the forty-two dollars.

The court makes it clear that not only is the amount of money realized from the life policy at the death exempt, but that during the life of the insured the policy and every right under the terms and provisions thereof are exempt to him up to the amount specified in the statute; at the time of the decision of the Dreyfus case, three thousand dollars; at the time of the accrual of this right of action, and at the time of the service of the writ of garnishment, five thousand dollars.

But counsel states that the petition filed in the bankrupt proceeding to release the policy from the trustee was based not on the ground that it was exempt, but that it was of no value. This question has also been expressly answered by our court in King v. Miles, 108 Miss. 732, in which the court expressly holds that a bankrupt does not waive his exemptions in insurance policies by listing them in his schedule of property, etc. See, also, Delta Ins. & Realty Co. v. Benjamin, 122 Mass. 275.

Appellant says that the only kind of judgment for personal injuries to which this section applies is a judgment resulting from a tort; in other words, that to exempt the judgment, it must have resulted from a suit based upon some tort committed by the defendant against the plaintiff, which resulted in some injury to the body of the plaintiff. I see nothing in the statute which indicates such. If this had been the intention of the legislature, they could very easily have so stated it. They did not do so, and I think that we are entitled to take the language of the statute in its ordinary acceptation. Green v. Weller, 32 Miss. 650.

The general principle for the court to follow is to ascertain what the legislative purpose of the statute was, and the reasons impelling the passage of it; this to be ascertained from the...

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