Crigger v. Mutual Ben. Health & Accident Ass'n

• Decision Date: 15 August 1933
• Parties: CRIGGER v. MUTUAL BEN. HEALTH & ACCIDENT ASS'N.
• Court: Tennessee Supreme Court

69 S.W.2d 907

CRIGGER v. MUTUAL BEN. HEALTH & ACCIDENT ASS'N.

Court of Appeals of Tennessee, Western Section.

August 15, 1933.

Certiorari Denied by Supreme Court January 24, 1934.

Appeal from Chancery Court, Shelby County; D. W. De Haven, Chancellor.

Suit by J. W. Crigger against the Mutual Benefit Health & Accident Association. From a decree dismissing the bill, the complainant appeals.

Decree affirmed.

Bates, Shea & Frazer, of Memphis, for appellant.

Armstrong, McCadden & Allen, E. W. Braden, and Thomas C. Farnsworth, all of Memphis, for appellee.

SENTER, Judge.

The original bill filed in this cause seeks to have a written release executed by the complainant to the defendant canceled and set aside and a recovery on a policy of insurance issued by the defendant for accident benefit payments, alleged to be due and owing to the complainant by the defendant.

There was a jury and issues of fact submitted to the jury, and a decree by the chancellor on the jury verdict in favor of the defendant, and the bill dismissed at the cost of complainant. A motion for a new trial by complainant was overruled. From the action of the chancellor in overruling the motion for a new trial and in dismissing the bill, complainant has appealed to this court and has assigned errors.

The bill alleged in substance that prior to the 3d day of April, 1931, he purchased and had delivered to him by defendant the policy of insurance sued on, whereby the defendant contracted to insure complainant against loss of life, limb, sight, or time resulting directly and independently of all other causes from bodily injuries sustained through purely accidental means; that the defendant, in case of such accidental injury, contracted to pay to complainant a monthly indemnity of $100 per month, if complainant should be wholly and continuously disabled for one day or more, from said bodily injuries sustained through purely accidental means, said indemnity payments to continue so long as complainant lives and suffers total loss of time; that the defendant further contracted, in the event of permanent total disability of the complainant, due to bodily injuries, or sickness covered by the policy, that there would be no further premiums payable by the complainant, but that the complainant would draw benefits as above provided. The bill then refers to certain provisions in the policy with reference to written notice of injury; affirmative proof of loss to be furnished in case of claims for loss of time for disability, and the issuance of the policy for the consideration of the premium mentioned.

The bill further alleges that complainant was not in possession of the policy of insurance sued on, and by reason thereof could not give the exact language of the policy, and demands that the defendant produce said policy and have the same at the hearing of the cause, but that the averments contained in the bill substantially set forth the terms and provisions of the policy contract; and that complainant had complied with all the essential provisions, and is therefore entitled to the indemnities and other benefits set out in the contract of insurance.

The bill alleges that while complainant was engaged in the occupation of an automobile mechanic, he suffered and sustained serious bodily injuries on April 3, 1931, purely through accidental means, which had caused him to suffer permanent and total disability since the date of said injury; that the said policy was in full force and effect at the time he received the injuries as the result of said accident; that he made the proofs and gave the notice to the defendant as required by the terms of the policy, and that the defendant paid to complainant the sum of $100 covering one month's indemnity or benefits, and represented the payment was for the first month of his disability.

The bill further alleges that, after said first payment of $100 had been paid, and after repeated demands had been made by him upon the defendant for the further monthly payments provided for under the contract, the defendant, its agents and servants, advised the complainant, who was then and has been since April 3, 1931, totally disabled, sick, and infirm, that by accepting the defendant's said check for $100 he had receipted the defendant for any and all claims which the complainant might have against the defendant, and that by receiving and cashing said check the complainant had released the defendant from any and all liability under its said policy; that, while making such claim that the defendant was no longer liable to complainant, the defendant advised the complainant that as a gratuity occasioned by the fact that he had been a policyholder for several years and was disabled, and to show that the defendant "was doing him right," the defendant would pay him the sum of $500. The bill further alleges that, relying on the aforesaid statement of the defendant that he had released it from any and all liability as a result of the said accident, by receiving and cashing said $100 check, and believing said statements as to said purported release to be true, the complainant received from defendant the sum of $500, executed a purported release, and delivered his said policy to the defendant. The bill further alleges that, at the time of the receipt of said $500 and the delivery of said policy of insurance, and the execution of said purported release, all of which took place about the _____ day of November, 1931, the defendant was liable to complainant in a sum of excess of said $500 received by him, in fact being liable to the complainant in the amount of approximately $600 after giving the defendant credit for the said $100 monthly indemnity previously paid. The bill alleges that said representations which induced him to execute said purported release and deliver the said policy to the defendant were false, untrue, and fraudulent, and that said purported release and said delivery of said policy were induced through chicanery and fraudulent representations, and that said purported release and the delivery of said policy were wholly without any consideration, and by reason thereof said purported release and the delivery of said policy, were void and of no force and effect, and that the contract of insurance is now a valid and subsisting contract between the defendant and the complainant. The bill alleges that complainant is entitled to have the court declare null and void any purported release and the delivery of said policy of insurance to the defendant, and to further have the court declare that said policy of insurance is a valid and subsisting contract between the complainant and the defendant, and that he is entitled to a decree against the defendant for monthly disability indemnities of $100 per month from April 3, 1931, for so long as he shall live and suffer total loss of time, and indemnities now accrued to be diminished by the payment of $600 heretofore made by the defendant to the complainant.

The bill prays for a decree declaring null and void any purported release executed by the complainant and the delivery of said policy of insurance to the defendant, and that said policy be decreed to be a valid and subsisting contract between the complainant and the defendant; that the complainant have a decree against the defendant for monthly indemnities which had accrued up to the hearing of the cause at the rate of $100 a month from April 3, 1931, the amount of said decree to be reduced by said $600 previously paid by defendant to complainant; that the complainant have a further decree against defendant declaring that defendant is liable to complainant for monthly indemnities at the rate of $100 per month so long as he shall live and suffer total loss of time, and that so long as complainant suffers and sustains a permanent total disability.

The bill calls for a jury to try the issues tendered.

The defendant answered the bill and admits the issuance of the policy of insurance sued on, and whereby the defendant contracted to insure the complainant against the loss of life, limb, sight, or time resulting directly and independently of all other causes from bodily injuries sustained through purely accidental means, and against loss of time on account of disease contracted within the provisions and limitations of the policy. The answer admits that by the terms and provisions of the policy it contracted to pay the complainant a monthly indemnity of $100 a month if the complainant should be wholly and continuously disabled for one day or more from said bodily injuries sustained through purely accidental means, and said indemnity payments to continue so long as the complainant lives and suffers total loss of time. The answer admits that the defendant is in possession of the policy, and states that said policy was delivered by the complainant to the defendant for good and valuable consideration. The answer denies that complainant has complied with, and is within, the essential provisions and limitations of the policy of insurance sued on, and the defendant further denies that the complainant is entitled to receive any monthly or other benefits under said policy.

The answer denies that the complainant, while engaged in his occupation or vocation of an automobile mechanic, suffered and sustained on April 3, 1931, bodily injuries through purely accidental means which had caused the complainant to suffer a permanent and total disability continuously since said date. The answer admits that the policy was in full force and effect on the 3d day of April, 1931, but denies that complainant since the 3d day of April, 1931, has been permanently disabled and physically incapacitated from said bodily injuries sustained through purely accidental means, or that the complainant has been wholly and continuously disabled since said date to engage in any work, vocation, or occupation. The answer denies that the complainant within the period of time...