Columbian Mut. Life Ins. Co. v. Gunn

• Decision Date: 14 October 1935
• Docket Number: 31812
• Citation: 163 So. 454,173 Miss. 897
• Court: Mississippi Supreme Court
• Parties: COLUMBIAN MUT. LIFE INS. CO. v. GUNN

163 So. 454

173 Miss. 897

COLUMBIAN MUT. LIFE INS. CO. v. GUNN

No. 31812

Supreme Court of Mississippi

October 14, 1935

Division B

1 TRIAL.

In determining whether directed verdict should be granted evidence must be taken most strongly in favor of party against whom it is asked, and every material fact which there is substantial evidence to establish, either directly or by reasonable inference, should be treated as proved in his favor.

2 INSURANCE.

Insured held not entitled to recover, on ground of disability disability premiums voluntarily paid on life policy which provided that upon proof of total and permanent disability payment of disability premiums should cease.

3. ACTION.

Where insured joined two insurance companies in action on two life policies, there was misjoinder of defendants in absence of allegation or proof that same insurance company operated under different names when policies were issued, and that one company issued both policies.

4. INSURANCE.

In action on disability clause of life policy in which insured alleged disability arising out of diabetes mellitus, admission of testimony that insured also had, as outgrowth of such diabetes, neuritis, arthritis, nephritis, and arteriosclerosis, held not error.

5. EVIDENCE.

In action by insured who suffered from diabetes mellitus to recover disability benefits under disability clause of life policy which defined disability as physical condition preventing insured from directing any gainful trade or profession, refusal to permit insurer to show on cross-examination of physician testifying for insured that insured could carry on his profession, notwithstanding his diabetes, held not error.

6. EVIDENCE.

In action to recover disability benefits under life policy, refusal to permit lay witnesses to testify concerning insured's manner 173 Miss.---57. and method of doing business, general appearance, and activities shortly before and after date, when insurer discontinued disability benefits, held abuse of discretion.

7. INSURANCE.

Insurer's acknowledgment that insured was totally and permanently disabled for certain period did not preclude insurer from all evidence having bearing on insured's condition thereafter

HON. T. H. McELROY, Judge.

APPEAL from circuit court of Tippah county HON. T. H. MCELROY, Judge.

Action by Willie Lee Gunn against the Columbian Mutual Life Insurance Company. From a judgment for the plaintiff, the defendant appeals. Reversed and remanded.

Reversed and remanded.

J. Morgan Stevens and J. M. Stevens, Jr., both of Jackson, Fred B. Smith, of Ripley, and Scott Fitzhugh, of Memphis, Tennessee, for appellant.

The court erred in granting a peremptory instruction to find for the plaintiff.

If there be any substantial reasonable testimony and conceding that testimony to be true, which sustains the case of a party litigant, a peremptory instruction should not be granted against that party.

Fore v. Union Central R. R. Co., 160 So. 903; Justice v. State, 170 Miss. 96, 154 So. 265; Jefferson Standard Life Ins. Co. v. Jeffcoats, 164 Miss. 659, 143 So. 842.

Everything must be considered as proved which the evidence established, either directly or by reasonable inference, against the party who requests a peremptory instruction.

Dean v. Brannon, 139 Miss. 312, 104 So. 173, 175; Keith v. Y. & M. V. R. R. Co., 168 Miss. 519, 151 So. 916; Lee County Gin Co. v. Middlebrooks, 161 Miss. 422, 137 So. 108; Lowe v. M. & O. R. R. Co., 149 Miss. 889, 116 So. 601; G. & S. I. R. R. Co. v. Prine, 118 Miss. 90, 79 So. 62.

Counsel for appellee relied upon the case of Metropolitan Life Ins. Co. v. Cato, 113 Miss. 283, 74 So. 114, as authority for the peremptory instruction in the case at bar. We recognize that the Cato case is one of the first and one of the leading cases favorable to the assured in cases of this nature, but the opinion in the Cato case does not at all justify the granting of a peremptory instruction in the case at bar.

New York Life Ins. Co. v. Bain, 152 So. 845; New York Life Ins. Co. v. Best, 128 So. 565, 157 Miss. 511; Metropolitan Life Ins. Co. v. Lambert, 157 Miss. 759, 128 So. 750; Equitable Life Assurance Co. v. Serio, 155 Miss. 515, 128 So. 485; Provident Life & Acc. Ins. Co. v. Anding, 144 Miss. 277, 109 So. 670; Lamar Life Ins. Co. v. Catlett, 139 So. 455; Mutual Benefit Health & Acc. Assn. v. Mathis, 142 So. 494; 18 C. J., p. 1044; Kelly v. Supreme Court, I. O. F., 195 Ill.App. 501; Fogleson v. Modern Brotherhood of America, 129 Mo.App. 548.

The question of whether insured was permanently disabled is usually for the jury.

8 Cooley's Briefs on Insurance (2 Ed.), p. 5609; 7 Cyc. of Insurance Law by Couch, par. 1689.

The judgment must be reversed on account of recovery of premiums.

Our Supreme Court has twice held that there can be no recovery of premiums paid under protest or premiums voluntarily paid the insurer pending a dispute as to whether the insured is entitled to a waiver of premiums.

Aetna Life Ins. Co. v. Cap Thomas, 166 Miss. 53, 144 So. 50; Featherstone v. Stonewall Life Ins. Co., 165 Miss. 164, 147 So. 305.

By assignment No. 1 complaint is made at the action of the trial court in overruling the special demurrer of the defendant to the declaration. This complaint is based upon the fact that the declaration in one count against the Columbian Mutual Life Ins. Company relies upon two separate and distinct contracts or policies of insurance, made exhibits, one policy being issued by the Columbian Mutual Life Assurance Society, a fraternal benefit society, incorporated under the laws of Mississippi and issued November 13, 1925, and containing separate, distinct and different provisions from those incorporated in the other policy contract sued for which was issued by the Columbian Mutual Life Insurance Company, a mutual insurance company, on May 17, 1928.

After the special demurrer was overruled the notice was given under the plea of the general issue of a misjoinder and the plaintiff without amending his declaration moved to strike the notice from the files. To our surprise the court sustained this motion and struck the notice from the files and this without any amendment to the declaration, or explanation as to why the plaintiff had a right to recover on both contracts as against the Columbian Mutual Life Insurance Company.

Questions calling for evidence tending to show improbability of or throw doubt on statements made in the examination in chief are proper on cross-examination, especially where such statements were in the nature of expert opinions.

Schrandt v. Young, 86 N.W. 1085, 62 Neb. 254.

Oscar F. Street, of Ripley, for appellee.

The appellant insurance company in January, 1931, recognized appellee Gunn's total and permanent disabled condition as defined by both the insurance contracts here sued upon, and continued to recognize his total and permanently disabled condition as defined and provided therein, up to December 1, 1933, a period of twenty-three months, and during said time paid appellee Gunn the annuity therein provided and waived payment of premiums as per the contract. This fact is established by the record of this case and is nowhere denied.

That diabetes mellitus is an incurable disease, is fully established by this record by all physicians who testified in this case and by recognized medical authorities read into the record and nowhere in the record is this statement denied.

The judgment as entered by the lower court was justly, properly and correctly reached.

Mutual Benefit Health & Accident Assurance Co. v. Mathis, 142 So. 494; Metropolitan Casualty Ins. Co. v. Cato, 113 Miss. 283; Metropolitan Life Ins. Co. v. Lambert, 157 Miss. 579.

It is familiar learning that insurance policies are to be construed most strongly against the insured who usually draws the contract and provides the exceptions contained in the clauses in such policies.

Great Southern Life Ins. Co. v. Campbell, 114 So. 263; 7 Couch on Insurance, sec. 1670, p. 5769.

Appellant would emphasize that the word "direct" a gainful occupation is significant in the disability clause in this case and in this connection we wish to point out this language contained in the disability clause of the insurance contract sued on in the Cato case, 113 Miss. 283: "Continually and wholly disabled and preventing the insured from performing any and every kind of duty pertaining to his occupation."

Certainly this language would embrace the "direction of any gainful occupation" and if anything, is even stronger than the language used in the disability clause of the insurance contract sued upon in this case.

It is not what a person does that entitled him to recovery, but it is the condition in which he is, and whether the activities will seriously endanger his health or life.

New York Life Ins. Co. v. Bain, 169 Miss. 271; Mutual Benefit Health & Accident Assurance Co. v. Mathis, 142 So. 494; Foreman v. New York Life Ins. Co., 255 N.W. --.

There was no conflicting question of facts to be submitted to the jury; but it became a question of law for the court to determine whether the plaintiff or the defendant was entitled to recover. It was the duty of the court to grant a, peremptory instruction, either for the plaintiff or for the defendant, on the positive testimony as to plaintiff's condition and there was nothing that the court could do except to grant the peremptory instruction for the plaintiff.

M. & O. R. R. Co. v. Clay, 156 Miss. 463, 125 So. 819.

A defendant is entitled to a peremptory instruction where the court, on the testimony, would have been compelled to set aside a verdict returned for the plaintiff.

Flora v. American Express Co., 92 Miss. 66, 45 So. 149; Board...