New York Life Ins. Co. v. Best

Decision Date02 June 1930
Docket Number28756
Citation128 So. 565,157 Miss. 571
CourtMississippi Supreme Court
PartiesNEW YORK LIFE INS. Co. v. BEST

Division B

APPEAL from circuit court of Jones county, Second district HON. W J. PACK, Judge.

Suit by Sarah E. Best against the New York Life Insurance Company. Judgment for complainant entered in the county court was affirmed by the circuit court, and defendant appeals. Affirmed.

Judgment affirmed.

Devours & Hilbun, of Laurel, for appellant.

It is the contention of the appellant that the statement of facts does not show the appellee to be totally and permanently disabled within the terms of the policy sued on, as interpreted by our courts, so as to entitle her to benefits claimed thereunder.

The supreme court of Mississippi, in the case of Metropolitan Life Insurance Company v. Cato, 113 Miss. 283, 74 So 114, in construing a similar clause to the one in question, held that the disability which would entitle an insured to recover, must be both total and permanent at the same time. Equitable Life Assurance Society v. Serio, 124 So. 485.

The trial court further erred in overruling the demurrer of the appellant to the amended bill of complaint.

The demurrer was based on two specific grounds--that the complainant had an adequate remedy at law; and that there was no equity in the bill.

The allegations of the cancellation of the policy was the only amendment made by appellee in her amended bill in order to secure the aid of equity.

The appellee cannot support her action by two contradictory allegations in the same bill and depend upon both at the same time. Such repugnancy is demurrable and violates all rules of pleading. Illinois Central R. R. v. Abrams, 84 Miss. 456, 36 So. 542.

Montgomery & Buchanan, of Laurel, for appellee.

The judge of the county court sitting in equity has the same power and authority as the chancellor in all matters of equity wherein the amount or value of the thing in controversy shall not exceed the sum of one thousand dollars. Hemingway's Code, 1927, sec. 725; Moore v. General Motors Company, 125 So. 411.

A chancellor's finding of fact upon conflicting evidence will not be disturbed by the supreme court on appeal. Stevenson v. Swilley, 126 So. 195; Jackson v. Banks, 109 So. 905; Bank v. Cola, 71 So. 261; Gulfport Transport Company v. Fireman's Fund, 121 Miss. 655, 83 So. 730; Stevens v. Magee, 81 Miss. 644, 33 So. 73; Interstate Cattle Company v. Lapsley, 24 So. 533.

A total disability exists if insured's injuries are of such a character that common prudence requires him to desist from his labors and rest as long as it is reasonably necessary to effect a speedy cure. 1 C. J. 465; Mutual Ben. Assoc. v. Nancarrow, 18 Colo.App. 274, 71 P. 423; Young v. Travelers' Ins. Co., 80 Me. 244, 13 A. 896; Lobdill v. Laboring Men's Mut. Assoc., 69 Minn. 14, 71 N.W. 696, 65 Am. S. R. 542, 38 L.R.A. 537; Wolcott v. United L., etc., Ins. Assoc., 55 Hun. 98, 8 N.Y.S. 263; Equitable Life Assurance Society v. Serio, 124 So. 485.

OPINION

Ethridge, P. J.

Mrs. Sarah E. Best, the complainant, filed her bill on the equity side of the county court to recover a benefit of ten dollars per month payable under a life insurance policy issued by the appellant upon her life, which also contained a ten dollar per month benefit. The pertinent part of the policy upon liability is as follows:

"And upon receipt of due proof that the insured is totally and presumably permanently disabled before age sixty as defined under 'Total and Permanent Disability' on the second page hereof, the company agrees to pay to the insured a monthly income of ten dollars increasing after five and ten years of continuous disability, and to waive payment of premiums, as provided herein."

"Disability shall be considered total whenever the insured is so disabled by bodily injury or disease that he is wholly prevented from performing any work, from following any occupation or from engaging in any business for remuneration or profit, provided such disability occurred after insurance under this policy took effect and before the anniversary of the policy on which the insured's age at next birthday is sixty."

The appellee belonged to a religious organization which believed in divine healing, and after the issuance of the policy and before the age of sixty she became afflicted with a disease known as arthritis in both feet, and claimed that she was unable to do her work, and while she could and did do a small amount, of work around the household she could not stand upon her feet for any length of time on account of the great pain occasioned from the said disease affecting her feet and ankles. She made a claim to the company but they declined to recognize the claim and required her to submit claim showing an examination by a physician. She thereon went to Dr Butler, a physician, and he found her suffering with this disease, and he testified that it was incurable and he found her feet and ankles swollen,...

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