Colonial Life & Acc. Ins. Co. v. Cook

• Decision Date: 12 September 1979
• Docket Number: No. 51435,51435
• Citation: 374 So.2d 1288
• Parties: COLONIAL LIFE & ACCIDENT INSURANCE COMPANY v. Mrs. Geraldine COOK.
• Court: Mississippi Supreme Court

Page 1288

374 So.2d 1288

COLONIAL LIFE & ACCIDENT INSURANCE COMPANY v. Mrs. Geraldine COOK.

No. 51435.

Supreme Court of Mississippi.

Sept. 12, 1979.

Wells, Wells, Marble & Hurst, John E. Hughes, III, Jackson, for appellant.

Waller & Waller, Bill Waller, Jr., Jackson, for appellee.

Before SMITH, P. J., and LEE and BOWLING, JJ.

SMITH, Presiding Justice, for the Court:

Colonial Life and Accident Insurance Company has appealed from a judgment entered against it in favor of Mrs. Geraldine Cook, as beneficiary under three separate policies of insurance issued to her husband, Victor W. Cook, Jr. Throughout the record, Policy No. 42664-01 is referred to as Policy No. 1, Policy No. 1151-1124 is referred to as Policy No. 2 and Policy No. 3773-32785 is referred to as Policy No. 3. Those designations will be used in this opinion.

Policy Nos. 1 and 2 were each entitled "Select Risk Accident Policy" and Policy No. 3 as a life insurance policy. Mrs. Cook's husband, Victor W. Cook, Jr., was named as the insured in each of the policies.

On April 2, 1976, Cook died as the result of a gunshot wound under the following circumstances. Cook and several of his friends were at a service station in Bentonia. While there, a minor disturbance arose and Cook went to his truck and obtained his pistol, which he placed under his belt. When the service station closed, Cook entered his truck preparatory to leaving. The pistol discharged, striking him in the groin and causing his death. There is no evidence, and in fact no contention, that insured was shot by any other person, or that Cook had died as the result of any crime or foul play.

Colonial defended as to Policy Nos. 1 and 2 upon the ground that it had paid, and Mrs. Cook, the beneficiary, had accepted and appropriated to her own use the amount due under each of the policies, and that therefore an accord and satisfaction had resulted. As to Policy No. 3, Colonial's defense was that there had been a material misrepresentation in the application for the policy which had voided the policy.

Subsequent to Cook's death, Mrs. Cook, as beneficiary, submitted a claim and proof of loss to Colonial. With these documents she also submitted a copy of Cook's death certificate. The claim form signed by Mrs. Cook stated that the cause of Cook's death had been "accidental self-inflocted (sic) gun shot wound." The death certificate submitted stated that the cause of death was "self-inflicted gun shot wounds accidental."

POLICY NO. 1:

Policy No. 1 contained the following provision:

For death covered by the provisions of this policy, where it results from . . ., shooting self-inflicted . . ., the amount payable shall be one-fifth the amount otherwise payable for accidental death. . . .

Colonial, on the ground that the death of Cook had resulted from a self-inflicted shooting, mailed to appellant its check in the amount of $750.00, payable to her as beneficiary, and representing one-fifth of the amount otherwise payable, for death by "self-inflicted shooting" under Policy No. 1, it being the position of Colonial that this was the amount due under the terms of the insurance contract.

On the reverse of this check, the following language appeared:

I hereby acknowledge that this payment is received in full settlement and release of all claims and liabilities under the policy issued by Colonial Life & Accident Insurance Company identified on the face of this draft and arising out of the accident on or about the date also shown thereon.

Mrs. Cook endorsed the check below the above release and testified at the trial that she knew and understood that the amount was tendered by Colonial in full payment and settlement of all claims under the terms of Policy No. 1, identified on the face of the check. The law in Mississippi as to accord and satisfaction is well settled.

In State Highway Department v. Duckworth, 178 Miss. 35, 42, 172 So. 148, 150 (1937) this Court said:

This court is thoroughly committed to the doctrine that, where money is paid with a recital that it is in full settlement of all demands, or of all accounts, or similar wording, when it is accepted, it is full settlement therefor, although there might be, in fact, more due than the recital in the check or warrant showed. . . .

This court is also committed to the doctrine that all antecedent agreements between parties are merged into the written contract when executed, and that parol evidence of such antecedent agreements is not admissible to contradict the recitals of the written instrument.

In May Brothers v. Doggett, 155 Miss. 849, 124 So. 476 (1929), the Court said:

It seems to be the general rule, as announced by the text-writers, (1 C.J. 554; 1 R.C.L. 191), that where a claim is unliquidated, or in dispute, the acceptance of a sum tendered by a debtor on condition that it be accepted in full settlement of the claim constitutes an accord and satisfaction; but in this state this rule applies to liquidated as well as unliquidated demands. . . .

(155 Miss. at 855, 124 So. at 478).

It is clear from the language of the release appearing on the reverse of the check and which was signed by Mrs. Cook that it was an effective release. Her testimony regarding this matter was to the effect that in endorsing the check she had done so knowing that the check was tendered by Colonial in full settlement of all of her claims under the policy, and she had accepted and used the proceeds for her own benefit, although she made a mental reservation that she was not accepting it as such. The execution of the release and acceptance of the money under the undisputed facts constituted an effective release of all claims and also was an accord and satisfaction, notwithstanding any secret mental reservation she may have had.

Mrs. Cook was not entitled to recover anything further under Policy No. 1, Colonial was entitled to a peremptory instruction in its favor, and it was error to submit the issue to the jury.

POLICY NO. 2:

Policy No. 2 contained a provision similar to that referred to above and contained in Policy No. 1, expressly limiting recovery under the undisputed circumstances in which Cook met his death, to one-fifth of the amount otherwise payable. This provision in Policy No. 2 was as follows:

For death covered by the provisions of this policy, where it results from . . ., shooting accidentally self-inflicted, . . ., the amount payable shall be one-fifth the amount otherwise payable for accidental death. . . .

Colonial tendered, and Mrs. Cook accepted and appropriated to her own use and expended, in settlement of her claim under Policy No. 2, the sum of $600.00, being one-fifth of the amount otherwise payable. This check, although there was no release appearing upon the back of it, according to Mrs. Cook's own testimony, was known by her to have been tendered by Colonial in full settlement of her claim under the policy. However, we think it is unnecessary to decide whether accord and satisfaction resulted from her action with respect to...