Life & Casualty Ins. Co. v. Bell

• Decision Date: 14 April 1938
• Docket Number: 6 Div. 278.
• Parties: LIFE & CASUALTY INS. CO. v. BELL.
• Court: Alabama Supreme Court

180 So. 573

235 Ala. 548

LIFE & CASUALTY INS. CO. v. BELL.

6 Div. 278.

Supreme Court of Alabama

April 14, 1938

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action by Will Bell against the Life & Casualty Insurance Company of Tennessee, to recover disability benefits under a policy of health and accident insurance. From a judgment for plaintiff defendant appeals.

Transferred from Court of Appeals under Code 1923, § 7326.

Reversed and remanded.

Wm. A Jacobs, of Birmingham, for appellant.

Paul G Parsons, of Birmingham, for appellee.

THOMAS Justice.

The suit was upon a health and accident insurance policy. The assured received physical injury in the discharge of the duties of his employment. Defendant and other companies paid claim for disability due to his accident and injury sustained on February 15, 1924, and discontinued payment on advice of physician. The position taken was not questioned until June, 1928, when assured claimed total disability since February 15, 1924.

The plaintiff filed suit against defendant on same policy, and on April 15, 1929, this case was settled and the entire liability paid to plaintiff's attorney of record by its check on the Southern Bank & Trust Company, which said check was payable to plaintiff and his attorney of record and was indorsed, "settlement in full of all claims of Will Bell against Company and especially of all claims on policy No. 2729482, duly surrendered for cancellation by said Will Bell and his attorney." Simultaneously with the delivery of said check, plaintiff's attorney delivered to defendant company the policy, receipt book, and written release signed by plaintiff and a written release signed by plaintiff's attorney, and the attorney's contract with plaintiff that the case be duly dismissed. This settlement was unquestioned until February 13, 1935, when the present suit was brought to recover disability benefits under said policy since February 15, 1924, the date of the injury.

Meanwhile the releases, policy, and receipt book were misplaced, and on this trial the insistence is made that the indorsement on the check was forged, the Southern Bank & Trust Company has been liquidated and plaintiff's former attorney not engaged in the practice of law.

Plaintiff testified he did not have the policy, that he had delivered it to Mr. Countryman, his former attorney, who was present at this trial, and laid a predicate for secondary evidence as to the policy and a printed form thereof exhibited, which was admitted in evidence.

Countryman was not offered as a witness by the plaintiff, though present in court, and plaintiff, over defendant's objection, was permitted to show that such former attorney had been disbarred and prevented from the further practice of the law. In re Countryman, 228 Ala. 21, 152 So. 257. Whereupon defendant proved by Wm. A. Jacobs and J. H. Countryman the contents of the last releases and contract of plaintiff of record in 1929, in bringing and settling the suit, and the delivery of the documents in question.

The case is thus stated by appellant's counsel:

Mr. Countryman testified that his written contract with Bell gave him full authority to make a settlement without any further consent being obtained, to settle the case or compromise it for him in court or out of court, to sign Bell's name to any papers in connection with it, including any check, without further authority being required, and to use his judgment as to what was for the best interest of Bell, and that the fee was a 50 per cent. contingent fee; that he negotiated with local manager for the defendant company and reached an agreement with Mr. Adams, who told him to deliver the papers to Mr. Jacobs, the defendant's attorney; that at the time, April 15, 1929, when Mr. Jacobs delivered to Mr. Countryman the check drawn by Mr. Adams for $900 in settlement of the case and all liability under the policy, Mr. Countryman delivered to Mr. Jacobs for the company policy and receipt book and Countryman's contract with plaintiff and a release signed by Countryman and also a release signed by the plaintiff; that Mr. Countryman first took to Mr. Jacobs his contract with the plaintiff and a release signed by Countryman and pointed out to Mr. Jacobs that the contract authorized Countryman to settle the case if he thought best. Mr. Jacobs received those papers, required Mr. Countryman to get an additional release executed by the plaintiff, which Mr. Countryman did and delivered it to Mr. Jacobs, and Mr. Countryman personally saw the plaintiff read over this release and sign it and Countryman witnessed it and delivered it to Mr. Jacobs, the release being a full and complete release of any and all liability under the policy, past, present, and future. Mr. Jacobs testified to substantially the same facts.

Countryman admitted that Bell did not indorse the check and stated that he had someone in his office to sign Bell's name to the check, claiming authority to do that under his written contract with Bell. Countryman admitted getting the $900 and claimed that he had tried repeatedly to give Bell half of that money, but Bell would not accept the amount.

The record shows that another attorney, Mr. J. G. Adams, had a similar experience with Bell, that at this same time Mr. Adams was handling another case against another insurance company for Bell to recover disability benefits from that company for this injury, and that Mr. Adams also made a settlement of that case, but Will Bell would never accept any of the money. Mr. Adams settled two cases for Bell for this injury about the same time, one being against the American National Life Insurance Company of Galveston, Tex., represented by Mr. Jacobs, and the other being against the Pilgrim Life & Health of Augusta, Ga., represented by Mr. Vassar Allen. Bell refused to take any of the money in any of these cases. He refused to accept compensation from the foundry company where he was working when he got injured. Mr. Fletcher Lord, another attorney, also represented Bell in one or more of these settlements.

The policy contains the following provision: "Should the total amount of weekly benefits received by the insured under all policies carried in this and all other companies and associations exceed the sum of Twelve Dollars per week, the Life & Casualty Insurance Company of Tennessee shall only be liable to the insured for such proportion of the amount provided for herein, under head 'Weekly Benefits,' as the said Twelve Dollars bears to the total weekly benefits receivable under all policies carried by the insured."

In this connection the plaintiff testified, as follows: "At the time I got hurt in February, 1924, I was carrying four accident disability policies. I had one with the National Life of Nashville, Tennessee, and I had one with the National of Chicago which was $7.50 per week, and I had one with the Atlanta Life, which was $5.00 per week and I had one with the American National of Galveston which was a group policy and provided for $60.00, but it didn't provide for weekly benefits. They were to pay me $60.00 a week. I had one with the Pilgrim Life & Health which paid me $5.00 a week and I had one with the North American Life which paid me $10.00 a week and I had one with the Metropolitan but it didn't pay me. It was a straight life. It didn't provide for any sick benefits * * * $60.00 group policy that I was talking about a while ago provided for $60.00 a week as long as I was totally and permanently disabled. It was a special policy."

The defendant, in addition to the general issue, had pleas of accord and satisfaction, limitations of six and ten years, set-off for premiums, and that disability was due to syphilis and other venereal disease not covered by the policy.

The trial resulted in verdict and judgment for plaintiff.

We find no error in establishing the written instruments in question and stating the contents thereof, the original being shown to have been lost, misplaced, on delivery to plaintiff. Alabama Construction Co. v. Meador, 143 Ala....