Driggers v. Business Men's Assurance Co. of America

• Decision Date: 24 February 1955
• Docket Number: No. 15160.,15160.
• Citation: 219 F.2d 292
• Parties: Hubert Wesley DRIGGERS, v. BUSINESS MEN'S ASSURANCE COMPANY OF AMERICA.
• Court: U.S. Court of Appeals — Fifth Circuit

219 F.2d 292 (1955)

Hubert Wesley DRIGGERS, v. BUSINESS MEN'S ASSURANCE COMPANY OF AMERICA.

No. 15160.

United States Court of Appeals, Fifth Circuit.

January 28, 1955.

Rehearing Denied February 24, 1955.

William D. Kimbrough, John J. Watts, Odessa, Tex., for appellant.

Ralph W. Malone, Dallas, Tex., Henry Russell, Pecos, Tex., Malone, Lipscomb & Seay, Dallas, Tex., for appellee.

Before HUTCHESON, Chief Judge, RIVES, Circuit Judge, and DAWKINS, District Judge.

RIVES, Circuit Judge.

This appeal is from a summary judgment entered in an action described by appellee as simply an attempt to retry a case finally adjudged against the appellant in Driggers v. Business Men's Assurance Company of America, 5 Cir., 1952, 199 F.2d 911. The present action was filed on February 12, 1954.

With a few changes in the amounts claimed to be due and owing and for which judgment is demanded, the complaint in the present action is almost verbatim the same as the complaint in the former case. In each complaint the plaintiff sues on the same health and accident policy issued by the defendant on the 11th day of January, 1948. In each complaint the claimed total and continuous disability of loss of time is alleged to have resulted from an accident described in the same manner and alleged to have occurred on or about the 7th day of March, 1948. In each complaint the plaintiff claims to be entitled to the benefits payable under the policy and particularly under the following provision thereof:

"1. Total Loss of Time — If such injuries totally and continuously disable the insured from date of accident or at any time within twenty days hereafter, the Company will pay the monthly indemnity herein specified for the period of such disability as long as the insured lives and remains so disabled."

In each complaint the plaintiff alleges that under the terms of the policy there is now due and owing to him a large sum ($5,000.00 in the former action, and $14,200.00 in the present action) and that the defendant has refused to pay such amount on demand. In each complaint, also, an anticipatory breach of the entire policy is alleged as follows:

"The Defendant, Business Men\'s Assurance Company of America, has repudiated their obligations to the plaintiff unquestionably without cause or justification, but returned to the plaintiff a payment tendered to them on July 8, 1949, which payment represented the premium about to become due on Plaintiff\'s Policy of insurance and that said defendant advised plaintiff that his policy of insurance was canceled; hence plaintiff alleges that because of the breach of the provisions of said policy unconditionally and without cause and justification, that he is entitled to declare the entire amount of benefits payable under the said policy due and payable in a lump sum."

In the former action, the plaintiff computed his life expectancy at the time of receiving the alleged injury as approximately 21 years, and the entire amount which would be payable under the policy as the sum of $50,400.00. In the present action, the plaintiff computes his life expectancy at the time of receiving the alleged injury as approximately 22.88 years, and the entire amount which would be payable under the policy as the sum of $53,920.00. In each complaint, the plaintiff alleges that defendant had been notified in writing and that due proof of loss had been made under the terms of the policy.¹ Each complaint seeks to recover the entire amount which would be payable under the policy plus a 12% penalty under the terms of Article 4376 of the Revised Civil Statutes of Texas together with reasonable attorney's fees. The total amount for which judgment was demanded in the former action was $71,400.00, and in the present action it is $78,290.40.

The defendant filed a full and complete answer pleading all of the defenses it had urged to the prior action, and in addition the defense of res judicata and the four year statute of limitations. The defendant also filed a motion for summary judgment on the grounds of res judicata and that the action based on the alleged anticipatory breach of the policy is barred by the four year statute of limitations prescribed by Article 5527 of the Revised Civil Statutes of Texas.

The plaintiff filed the following reply to defendant's motion for summary judgment:

"1.

"Defendant is not entitled to judgment, as a matter law, on the ground that the previous suit was res judicata. The United States Court of Appeals for the Fifth Circuit held in support of the Trial Court\'s entry of judgment non obstante veredicto that defendant had never breached the contract between plaintiff and defendant. Further, that proof of loss in respect of the claim for total permanent disability was never made. Therefore, plaintiff\'s cause of action had not matured until due proof of loss had been made and the claim denied, thereby giving rise to plaintiff\'s suit for breach of contract. Plaintiff alleges that defendant has breached the contract by its refusal to consider plaintiff\'s claim or to receive his proofs of loss. Hence, plaintiff alleges that since the United States Court of Appeals for the Fifth Circuit and this Honorable Court have both held that plaintiff had no cause of action in the previous suit, that such suit could not be a bar to the bringing of the present action.

"2.

"Defendant is not entitled to summary judgment on the ground that the action is barred by limitation for the reason that if defendant had not repudiated the contract in 1949, then plaintiff had no cause of action until such contract was repudiated. Plaintiff, in his present suit, alleges that further proofs of loss have been submitted to defendant and that defendant has denied the claim in that his cause of action matured within less than four years from the bringing of this action. Defendant states that it did not breach the contract in 1949, and this Court and the Court of Appeals for the Fifth Circuit so held. Plaintiff further asserts that the filing of the previous suit, the trial and subsequent appeal served to toll the limitation period and that for this additional reason defendant\'s motion should be denied."

After hearing, the district court entered summary judgment for the defendant from which this appeal is prosecuted.

In the former action a full trial resulted in a verdict of the jury on special issues as follows:

"1. We, the jury, find for the plaintiff, Hubert W. Driggers, that he was totally incapacitated either (a) permanently, or (b), if you find that said incapacity was temporary but not permanent, then state the number of months, if any, which you believe the plaintiff to be totally incapacitated, if he is

"Answer: (a) Permanently (b) * * *

"2. We, the jury, find that the defendant, without cause, reason or justification, expressly repudiated its liability to the plaintiff and denied liability for the injuries sustained by plaintiff as of March 7, 1948. Answer `Yes\' or `No\'.

"Answer: Yes "3. We, the jury, find from a preponderance of the evidence that a reasonable attorneys fee will be the sum of $10000.00.

"4. We, the jury, find from a preponderance of the evidence that the present value of the benefits that plaintiff is entitled to receive from the defendant under the terms of said policy is $52106.67.

"(S.) J.A. Slaughter "Foreman."

After the return of that verdict in the former action, the defendant made its motion for judgment non obstante veredicto upon three grounds: (1) that there was no proper pleading nor proof of an anticipatory breach; (2) that the undisputed evidence showed that plaintiff had furnished no proofs that he was disabled, except for two periods, for both of which the defendant had made payment in full; (3) that, under the Texas decisions, the $600.00 voucher, dated June 13, 1949, had all the necessary requisites of a release in full for the claim being asserted by plaintiff.

Pursuant to that motion, the district court entered judgment for the defendant notwithstanding the verdict, but without indicating upon which ground or grounds the judgment was so entered.² That judgment was affirmed by this Court, the opinion holding that there had been no anticipatory breach of the policy, and that no demand was made nor proof of loss furnished by the plaintiff, and therefore there was no basis for the suit. Driggers v. Business Men's Assurance Co. of America, 5 Cir., 199 F.2d 911.

The claim for anticipatory breach of the entire policy is exactly the same in the present as in the prior action, and clearly that claim is barred with the rule quoted in United States v. Munsingwear, 340 U.S. 36, 38, 71 S.Ct. 104, 105, 95 L.Ed. 36, from Southern Pacific R. Co. v. United States, 168 U.S. 1, 48-49, 18 S.Ct. 18, 42 L.Ed. 355, as the classic statement of the rule of res judicata:

"`The general principle announced in numerous cases is that a right, question, or fact distinctly put in issue, and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and even if the second suit is for a different cause of action, the right, question or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified.\'"

In addition to recovery for the anticipatory breach specifically demanded together with penalties and attorney's fees, the complaint in both actions also prayed "for such other and further relief as plaintiff may show himself justly entitled to receive either at law or in equity." Even in the absence of such a prayer, we would have to take notice of the provision of Rule 54(c), Fed.Rules Civ.Proc. 28 U.S.C.A. that, "Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if ...