Moruzzi v. Fed. Life & Cas. Co.

• Decision Date: 10 January 1938
• Docket Number: No. 4320.,4320.
• Court: New Mexico Supreme Court
• Parties: MORUZZIv.FEDERAL LIFE & CASUALTY CO.

42 N.M. 35

75 P.2d 320

MORUZZI

v.FEDERAL LIFE & CASUALTY CO.

No. 4320.

Supreme Court of New Mexico.

Jan. 10, 1938.

Appeal from District Court, Colfax County; F. S. Merriau, Judge pro tempore.

Action by Santa Moruzzi against the Federal Life & Casualty Company to recover death benefit under a policy of accident insurance. Judgment for plaintiff, and defendant appeals.

Reversed and remanded, with directions.

Words will not be added to statute except when necessary to make statute conform to obvious intent of Legislature, or to prevent statute from being absurd.

Crampton & Robertson, of Raton, for appellant.

Fred J. Federici, of Santa Fé, and Floyd W. Beutler, of Taos, for appellee.Quincy D. Adams, of Santa Fé, amicus curiæ.

ZINN, Justice.

This suit was brought in the district court of Colfax county by Santa Moruzzi, appellee here, plaintiff below, widow of John Battista Moruzzi, deceased, to recover death benefits under a policy of accident insurance. By its answer, the Federal Life & Casualty Company, defendant below, appellant here, admitted the existence of the policy, but denied most of the remaining material allegations of the complaint and set up as an affirmative defense a release executed by the insured after the injury but prior to his death. By her reply, the appellee admitted the facts set up in the answer concerning the release, but sought to avoid the effect of the release by certain allegations respecting mistake, fraud, and want of consideration.

After the case was at issue, the appellant filed a disqualifying affidavit disqualifying Judge Taylor from trying the cause. Instead of agreeing upon another district judge to try the case, the parties, acting through their attorneys of record, designated F. S. Merriau, Esq., of Raton, N. M., a member of the bar, to hear and determine the cause and act as judge pro tempore therein.

By this same stipulation, the parties eliminated certain issues of fact raised by the pleadings.

The case was tried before Mr. Merriau on April 28, 1937. Neither party offered any evidence, but certain additional facts were stipulated. The parties then united in requesting the court to render judgment on the facts admitted by the pleadings, by the written stipulation, and by the facts orally stipulated.

Final judgment was rendered in favor of the appellee in the amount of $501.67, together with costs in the amount of $11.50, and together with interest at 6 per cent. from the date of the judgment. From this judgment the appellant prosecutes this appeal.

The facts in this case are as follows:

John Battista Moruzzi was employed by Phelps Dodge Corporation at Dawson, N. M., as a mason and plasterer. Though a man of meager education, he was able to read, write, and understand the English language. On January 30, 1936, Moruzzi received a personal injury through being struck on the head by some boards falling from a scaffold. Immediately following the injury and throughout the period of his disability, he consulted and was attended by a physician and surgeon who was then in the employ of Phelps Dodge Corporation. Moruzzi was disabled for a period of fourteen days, and immediately after the termination of that period he returned to work at his regular employment and continued at such work until the evening of March 12, 1936, which was approximately one month after his return to work. On that evening, he was taken ill, and died early the following morning. Moruzzi's death was a direct and proximate result of the injury.

At the time of the injury, Moruzzi was insured by an accident insurance policy, which had been issued in June, 1924, by Federal Casualty Company of Detroit, Mich., and thereafter assumed by the appellant.

The policy insured Moruzzi, as follows:

“The This policy insures against- (1) the effects Insuring resulting directly and exclusively of all other Clause causes, from bodily injury sustained during the life of this policy solely through External, Violent and accidental means (excluding suicide, sane or insane), said bodily injury so sustained being hereinafter referred to as ‘such injury,’ and

“(2) disability resulting from illness which is contracted and begins during the life of this policy and after it has been maintained in continuous force for thirty days from its date, hereinafter referred to as such illness, as follows:

“Part I.-Principal Sum and Monthly Indemnities.

“Principal Sum Five Hundred Dollars

“Monthly Accident Indemnity Fifty Dollars

“Monthly Illness Indemnity Fifty Dollars.

“Part II.-Accident Insurance- Specific Losses.

“If ‘such injury’ alone shall within ninety days from the time of the accident, result in any one or more of the following specific losses, the Company will pay, in lieu of all other indemnity the sum specified below for such loss, provided that not more than one such indemnity shall be payable as the result of any one accident.

“For Loss of Life-The Principal Sum

“For Loss of Both Eyes-The Principal Sum

“For Loss of Both Hands-The principal Sum

“For Loss of Both Feet-The Principal Sum

“For Loss of One Hand and One Foot -The Principal Sum

“For Loss of either Foot-One Half the Principal Sum

“For Loss of Either Hand-One Half the Principal Sum

“For Loss of Either Eye-One Third the Principal Sum.

“In every case referred to in this policy, the loss of any member or members shall mean loss by severance at or above a point of articulation of the wrist joints or ankle joints, and the loss of an eye shall mean the total and irrevocable loss of the entire sight thereof.

“Part III.-Sixty Per Cent. Accumulations.

“For each consecutive month immediately preceding the date of the accident that this policy shall have been maintained in continuous force without default by payment of the premium on or before the first day of each month when due, one per cent. of the original principal sum of this policy shall be added to the indemnity provided in Part I, for loss of life, but the total amount of such additions shall never exceed sixty per cent. of such original principal sum.

“Part IV.-Monthly Accident Indemnity.

“Temporary Total Disability. Sec. (a) Or, for the period of total loss of time, not exceeding three consecutive years, during which ‘such injury’ alone shall from date of the accident wholly and continuously disable the Insured from performing any and every duty pertaining to his occupation, the Company will pay accident indemnity at the rate per month specified in Part I; “Permanent Total Disability. Sec. (b) And, after said period of three years and so long as the Insured shall live and continuously suffer total disability as defined in Sec. (a) of this part, the Company will pay one-fourth of said Monthly Accident Indemnity “Temporary Partial Sec. (c) Or, if ‘such injury’ shall not from date of accident wholly disable the insured but shall within thirty days thereafter wholly disable him, or shall, commencing on date of the accident or immediately following total loss of time, prevent him from performing work substantially essential to the duties of his occupation, the Company will pay as indemnity for the continuous period of loss of time caused thereby, not exceeding six consecutive months, one-half of said Monthly Accident Indemnity.

“Provided that indemnity under this Part shall not be paid for disability resulting from any loss specified in Part II; not in excess of the time the Insured is under the regular treatment of a legally qualified physician or surgeon.”

The additional provisions of the policy material to a determination of the issues raised by the appeal are paragraph 7 of the Standard provisions of the policy which required the insured to furnish affirmative proof of loss in case of claim for loss of time from disability within ninety days after termination of the period for which the company is liable, and paragraph (b) of the miscellaneous provisions of the policy which provides: “Insured may at any time release the company from any and all liability then existing or thereafter accruing to the beneficiary.”

On or about February 4, 1936, Moruzzi executed and sent to the appellant a preliminary notice of accident bearing on the reverse side the preliminary report of the attending surgeon. The printed, form of this preliminary notice had already been in Moruzzi's possession along with the policy, and it was received by the appellant on or immediately prior to February 10, 1936.

Question 9 contained in the preliminary notice of accident was answered by Moruzzi as follows: “If paid at once without requiring further proofs, what number of days indemnity are you willing to accept in full payment and satisfaction of your claim for this injury? 14 days.”

On receipt of the preliminary notice, the appellant on February 10th sent by mail to Moruzzi a letter accepting his proposal of settlement and inclosing the company's check in the amount of $23.33.

That part of the face of the check material hereto, is as follows:

“Pay to the order of John Batista Mourzzi $23.33 Insured

G. I. C. 313 $23 & 33 cts. Dollars,

“Being in full and final compromise settlement of all claims against this company under its policy No. 454894 for any accidental injury or illness, or its or their effects, originating prior to date hereof.

“Federal Life and Casualty Company

“J. A. Kennedy, Treasurer.”

The appellant sent this check prior to the expiration of the estimated fourteen days' disability and without any opportunity to investigate the accident and without requiring final proof. Moruzzi received the letter and the check and indorsed and negotiated the check with the receipt and indorsement appearing on the reverse side. On the reverse side of the check appearing immediately above the signature of Moruzzi is the following receipt: “Received of the Federal Life and Casualty Company the amount named on face hereof in full payment and compromise settlement, release and discharge, of any and all claims made or to be made...