Equitable Life Assur. Soc. v. Slaughter

• Decision Date: 01 February 1937
• Docket Number: 32476
• Citation: 172 So. 300,178 Miss. 366
• Court: Mississippi Supreme Court
• Parties: EQUITABLE LIFE ASSUR. SOC. v. SLAUGHTER

172 So. 300

178 Miss. 366

EQUITABLE LIFE ASSUR. SOC. v. SLAUGHTER

No. 32476

Supreme Court of Mississippi

February 1, 1937

Division B

Suggestion Of Error Overruled March 15, 1937.

APPEAL from circuit court of Lauderdale county HON. A. G. BUSBY Judge.

Action by Edward A. Slaughter against the Equitable Life Assurance Society. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Watkins & Eager, of Jackson, and Wilbourn, Miller & Wilbourn, of Meridian, for appellant.

Appellee can in no event recover for disability benefits alleged to be due from November 1, 1933, since the alleged proofs were not received by the appellant until in February 1934.

Mutual Life Ins. Co. of New York v. Hebron, 166 Miss. 145, 146 So. 445.

When alleged proofs of disability were received by appellant in February 1934 as well as on November 1, 1933, the date from which disability payments were claimed under said proof, appellee was above the age of sixty years and not entitled to any money monthly disability benefits.

Aetna Life Ins. Co. v. Thomas, 166 Miss. 53, 144 So. 50; Miss. Baptist Hospital v. Moore, 156 Miss. 676, 126 So. 465, 67 A. L. R. 1106.

The receipt and release coupled with the dismissal of the first suit with prejudice constitutes an accord and satisfaction and a bar to any future action insofar as the disability benefits provisions are concerned up to the date of said release and dismissal.

1 C. J. 523; May Bros. v. Doggett, 155 Miss. 849, 124 So. 476; Greener & Sons v. Cain & Sons, 137 Miss. 33, 101 So. 859; Home Mutual Fire Ins. Co. v. Pittman, 111 Miss. 425, 91 So. 739; Mixon v. Sovereign Camp W. O. W., 155 Miss. 841, 125 So. 413; Maryland Casualty Co. v. Adams, 159 Miss. 96, 131 So. 544; 34 C. J. 787; Dean v. Bush, L. R. A. 1918B 523; Railroad Co. v. U.S. 28 L.Ed. 971, 113 U.S. 261; Section 595, Code of 1930.

Frank K. Ethridge and Geo. B. Neville, both of Meridian, for appellee.

As we understand it, the attorneys for appellant insist that under the terms of the policies involved in this suit the monthly disability payments cease upon the sixtieth birthday of the insured, even though the insured became permanently disabled before his sixtieth birthday and such disability continued without interruption beyond the sixtieth birthday.

Our contention is that if the insured became totally and permanently disabled within the meaning of the policies before his sixtieth birthday, he became entitled to the monthly payments after the giving of notice so long as he remained totally disabled.

Both counts of the declaration allege that the insured became totally disabled before his sixtieth birthday and that this disability continued without any interruption until the filing of the suit and also allege the giving of notice required.

This court has held in a number of cases that before the insured can recover the disability benefits the notice must be given, but it has, so far as we know, never held that the notice must be given before the insured reaches the age of sixty.

We think that a mere reading of this receipt and release will conclusively answer the contention of the appellant that the appellee thereby released any claims that he might have for permanent disability benefits under the policies subsequent to October 19, 1933, the date of the receipt and release, because in three or four places it specifically states that the appellee releases only claims up to its date. If it had been the agreement that appellee was to release any claim for future monthly benefits, it would have been very easy to have said so in plain language, and if such had been the agreement there would have been no limitation of the release to the date of the agreement.

The attorneys for appellant also insist that the judgment of dismissal with prejudice of the first suit constitutes a bar to the present suit. The judgment of dismissal was taken pursuant to the receipt and release. The appellant in its pleadings did not set out in full the judgment but simply alleged that the first suit was dismissed with prejudice.

It is common learning that a judgment is not a bar to a second suit on other claims or issues.

34 C. J., page 798, page 823, par. 1237, pages 932, 933, and 934, par. 1358, and page 935, note 30; Wisconsin v. Torinus, 28 Minn. 175, 9 N.W. 725.

It is conceded that no new proof was given until January, 1934, and as alleged in pleas, not received until February, 1934. We submit that it is now too late for the appellant to contend that the appellee was not entitled to a judgment for the monthly benefits from November 1, 1933, to February 1934. Appellant should have filed a special plea and thereby called the lower court's attention to the matter.

Argued orally by Pat Eager, for appellant, and by Frank K. Ethridge, and Geo. B. Neville, for appellee.

OPINION

Anderson, J.

Appellee brought this action against appellant in the circuit court of Lauderdale county to recover the sum of $ 75 per month covering the period from November 1, 1933, to February 1, 1936, under the total and permanent disability provisions of two life insurance policies issued to him by appellant, one for $ 5,000 and the other for $ 2,500. There was a verdict and judgment for the amount sued for, with interest. From that judgment, appellant prosecutes this appeal.

The questions are (1) whether or not proofs, as provided in the policies, of total and permanent disability had to be made before appellee reached the age of 60; (2) whether or not there had previously been an accord and satisfaction between the parties as to the benefits, both past and future, and if not, (3) whether the judgment was for an amount in excess of what appellee was entitled to recover. We will consider those questions in the order stated.

The $ 5,000 policy prodded for the payment of that sum on the death of the insured, and while living, $ 50 a month for a total and permanent disability occurring before the age of 60; and the $ 2,500 policy provided for the payment of that stun on the death of the insured and $ 25 a month for a total and permanent disability occurring before the age of 60.

Appellee was born May 30, 1872, therefore he was 60 years of age on May 30, 1932. He claimed to have become totally and permanently disabled because of a disease of the heart on January 1, 1931. He made proofs of the disability on the 14th of May, 1932. Appellant, after receipt arid consideration of the proofs, refused to pay the benefits, whereupon appellee brought suit to recover them. This suit was pending on the 19th day of October, 1933, when appellee and his wife executed and delivered to appellant the following "Receipt and Release: "

"The undersigned Edward A. Slaughter, and his wife, Annie Rebecca Slaughter, hereby acknowledge receipt of the sum of one thousand dollars ($ 1,000.00), cash in hand paid to them by The Equitable Life Assurance Society of the United States, in full and complete settlement of all claims, demands and causes of action of every nature whatsoever under the terms and provisions of two policy contracts of life insurance issued by said company to the said Edward A. Slaughter as the assured, and wherein the said Mrs. Annie Rebecca Slaughter is beneficiary, the first of said policies being dated November 13, 1925, in the face amount of five thousand dollars ($ 5,000.00), and numbered 3 863 733, and the other policy dated May 14, 1926, in the face amount of twentyfive hundred dollars ($ 2,500.00), and numbered NM 4053 678, insofar as the total and permanent disability benefits provisions of said policy contracts are concerned, up to the present date.

"By the provisions of said policies in case of total and permanent disability on the part of the named assured, as therein provided, certain monthly installments are provided for the benefits of the assured upon satisfactory proof of such disability, as therein expressly provided, and the above mentioned sum of one thousand dollars ($ 1,000.00) is paid, and received by the undersigned, in full and complete settlement of all such total and permanent disability benefits provisions under both of said policies up to the present date of October 19, 1933, with the further understanding that the acceptance of said sum shall in no wise be construed as any waiver or relinquishment of any future right on the part of the...