Eminent Household of Columbian Woodmen v. Bunch
| Decision Date | 15 October 1917 |
| Docket Number | 19357 |
| Citation | 76 So. 540,115 Miss. 512 |
| Court | Mississippi Supreme Court |
| Parties | EMINENT HOUSEHOLD OF COLUMBIAN WOODMEN v. BUNCH |
APPEAL from the circuit court of Yazoo county, HON. W. H. POTTER Judge.
Suit by J. D. Bunch against the Eminent Household of Columbian Woodmen. From a judgment for plaintiff, defendant appeals.
Appellant a fraternal insurance company, prosecutes this appeal from a judgment rendered by the circuit court of Yazoo county in favor of J. D. Bunch, appellee, in the sum of two thousand three hundred dollars. The action was based upon a combination life, health, and accident insurance policy or "covenant" issued April, 1906, the value of which accumulated in accordance with its age, but in this case conceded to give appellee protection in the total sum of five thousand dollars. The covenant contains several provisions insuring the "guest," as the member is denominated against accident and permanent disability, the more important provisions being as follows:
Mr. Bunch, a farmer by occupation, appears to have been in good health at the time the policy was issued to him and paid all premiums and assessments required, but beginning in the year 1910 he became the subject of a series of misfortunes and illness. According to the proof, in the year 1910 he suffered a stroke of paralysis, and from the effects of this he partially recovered, and for this he made no claim under his policy. In 1912 he fell and stuck a hay wire in his left eye, and from this accident he lost the use of his left eye, and in fact the eyeball had to be removed. For this injury appellee, under the terms of his policy, collected two thousand five hundred dollars, or one-half, in one sum. Soon after the injury to the eye, appellee broke his left arm near the wrist, and subsequently was thrown from his horse and had his right hip fractured. Mr. Bunch claims that his physician advised that he would recover, and for this reason he put in a claim for a broken leg and received under his policy two hundred dollars therefor. In September, 1915, appellee instituted a suit in the circuit court claiming permanent disability under the terms of his covenant and asked judgment on the policy for the balance of two thousand three hundred dollars. Issue was joined in this case, and upon trial of the cause in November, 1915, there was a peremptory instruction in favor of the defendant based largely upon the theory that plaintiff at that time was holding the office of justice of the peace and able to attend at least to a part of the duties of his office. Judgment was entered for the defendant in said suit, but in March, 1916, plaintiff, having resigned his office of justice of the peace, instituted another action against appellant, claiming total and permanent disability, and this action is the one now before the court. A demurrer to the declaration was overruled, and thereupon the defendant interposed the plea of res adjudicata, in addition to other pleas denying liability. Upon the trial of this second suit the evidence for the plaintiff stands undisputed. The defendant introduced the record of the first trial upon the issue of res adjudicata and earnestly contends that the present action is barred. There was a verdict and judgment in favor of the plaintiff, from which this appeal is prosecuted. The first assignment challenges the court's action in overruling the demurrer to plaintiff's declaration and presents for interpretation the covenant sued on. Counsel for appellant construe the clause in reference to the loss of an eye as meaning that the insured would have the option to accept two thousand five hundred dollars cash and end the contract absolutely, or he may continue the contract in the interest of his family for the full value of his policy, or he may accept one-half the amount of the policy and elect to continue the contract for a like sum for the protection of his family, but in this latter event he is required to continue the policy "until death." Counsel for appellee challenge this construction of the covenant sued on and contend that the payment of two thousand five hundred dollars for the loss of an eye merely reduced the accumulated value of the covenant, and when plaintiff elected to continue the policy in force until his death the contract was kept alive in all of its terms and provisions, and accordingly the other important provisions of the policy, including the insurance for total disability, could be relied upon.
It is also contended by counsel for appellant that the plea of res adjudicata should have been sustained. It is further contended that under the by-laws in force at the time the policy was issued the plaintiff could only recover one-tenth of the amount sued on because payment must be in ten equal annual installments. The by-law relied upon seems to be the following:
"On satisfactory proof of total and permanent disability at any age, this guest shall receive the value of this covenant at the time of such disability in ten equal annual installments."
The point is also made that because the condition of total disability resulted from injuries for which the appellant had discharged its liability by payment, no recovery could now be had for these resultant, permanent injuries.
Affirmed.
Campbell & Campbell, E. L. Brown and J. A. Teat, for appellant.
Holmes & Holmes and Barbour & Henry, for appellee.
(After stating the facts as above). The strongest point made for appellant on this appeal is presented on the plea of res adjudicata. The first...
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