Rosso v. New York Life Ins. Co

• Citation: 128 So. 343,157 Miss. 469
• Decision Date: 19 May 1930
• Docket Number: 28715
• Court: United States State Supreme Court of Mississippi
• Parties: ROSSO v. NEW YORK LIFE INS. CO

128 So. 343

157 Miss. 469

ROSSO v. NEW YORK LIFE INS. CO

No. 28715

Supreme Court of Mississippi, Division B

May 19, 1930

(Division B.)

JUDGMENT. Beneficiary's recovery of insurance on insured's death held not to bar subsequent suit for disability benefit payable under same policy.

Where an insurance policy provides for sick or disability benefit payable to the insured, for which a premium is collected, and also provides insurance on the life of the same person payable to a named beneficiar in a named sum for which a different or distinct premium is paid, recovery in a suit for the amount of the life insurance policy does not prevent a subsequent suit for the disability benefit, although, under the terms of the policy, the disability benefit became the property of the beneficiary in the policy in case of the death of the insured. In such case there are two different causes of action, and a plea of res adjudicata in such case is bad.

HON. R L. CORBAN, Judge.

APPEAL from circuit court of Wilkinson county, HON. R. L. CORBAN Judge.

Action by Concitinna Rosso against the New York Life Insurance Company. From a judgment of dismissal, plaintiff appeals. Reversed and remanded.

See also, 154 Miss. 196, 122 So. 382.

Judgment reversed and cause remanded.

Jones & Stockett, of Woodville, for appellant.

There is a distinction well drawn and defined, between the proceeds and payment of a life insurance policy at the death of the insured, and the payment of monthly indemnity and disability benefits during the disability of the insured. A judgment for one is not res adjudicata as to the other.

Sewer Pipe Co. v. Dumler, 120 So. 450.

The mere fact that a claim might be propounded in a suit does not make it res adjudicata.

Hubbard v. Flynt, 58 Miss. 266; Perry v. Lewis, 49 Miss. 443; Greegan v. Hyman, 93 Miss. 481, 46 So. 952.

A. H. Longino and L. C. Hallam, both of Jackson, for appellee.

A party will not be permitted to split up his cause of action and litigate one part at one time and another in a subsequent litigation.

Bass v. Nelms, 56 Miss. 502, 507; 3 Ch. Pl. N. 929, also 1159; Agnew v. McElroy, 19 Miss. (10 S. & M.) 552, 554, 555, 556; Kimball v. Railroad Co., 94 Miss. 396, 405, 48 So. 230; Farmer v. Union Insurance Co., 146 Miss. 600, 111 So. 584; Y. & M. V. R. v. Payne, 92 Miss. 126, 128, 45 So. 705; Home Insurance Co. v. Tate Mercantile Co., 117 Miss. 760, 769, 78 So. 709; State v. Morrison, 60 Miss. 74; Big. on Estop., 129; Herman on Estop., sec. 77; Freem. on Judg., secs. 238, 240; 2 Smith's Ld. Cas. (6 Am. Ed.), 801; Hanes v. Planters, etc., Assn., 55 Miss. 654; Freem. on Judg., sec. 240; Burritt v. Belfry, 36 Am. Rep. 79; Coggins v. Bulwinkle, 1 E. D. Smith, 434; Reformed Dutch Church v. Brown, 54 Barb. 191.

Where there are breaches of several covenants contained in one instrument, and a suit brought for damages for some of the breaches, and subsequently a second suit is brought for damages claimed under other breaches, all of the causes of action being in existence at the beginning of the first suit, the first action may be used as a defense against the second.

2 Black Judgs. (2 Ed.), p. 1105, sec. 735; 2 Freem. Judg. (5 Ed.), p. 1267, sec. 602; Ib., pp. 1267, 1268, sec. 603; Ib., p. 1317, sec. 625; Ib., pp. 1318, 1319, sec. 626; McVay v. Castenara, 152 Miss. 106, 119 So. 155; Thurman v. Pointer, 67 Miss. 297, 7 So. 215; 34 C. J. 829; Y. & M. V. R. Co. v. Payne, 92 Miss. 126, 45 So. 705; Kimball v. R. R. Co., 94 Miss. 396, 48 So. 230; Home Ins. Co. v. Tate Mercantile Co., 117 Miss. 760, 78 So. 709; Fewell v. N. O. G. N. R. Co., 144 Miss. 319, 109 So. 853; Farmer v. Union Ins. Co., 146 Miss. 600, 111 So. 584; Wilcox v. Mills, S. & M. Ch. 85; 37 C. J., p. 408, sec. 87; Davis v. Davis, 65 Miss. 498; Perry v. Lewis, 49 Miss. 443.

Argued orally by P. M. Stockett and A. H. Jones, for appellant, and by L. C. Hallam, for appellee.

OPINION

Ethridge, P. J.

The appellant was plaintiff in the court below and filed a declaration against the New York Life Insurance Company in which it was alleged that on the 21st day of December, 1926, the New York Life Insurance Company, in consideration of the sum of twenty-five dollars and seventy cents, then and there paid to it in advance, and which sum was included in and payable with a certain premium of insurance on the life of one Salvatore Rosso bearing even date therewith, the said policy of insurance on the life of said Salvatore Rosso being numbered 9602134, agreed, promised and contracted with said Salvatore Rosso, that it would pay to the said Salvatore Rosso a monthly income of $ 100 and to waive payment of the premiums under the said policy upon receipt of due proof that the said Salvatore Rosso, the insured, was totally and presumably permanently disabled before the age of sixty, and in said agreement, promise, and contract further agreed, promised, and contracted:

That any disability benefit due but unpaid at the time of Salvatore Rosso's, the insured's, death should be payable to the person entitled to the proceeds of the policy.

That in the said policy of insurance, and of which the said agreement, promise, and contract as to the payment of said monthly income of one hundred dollars was a part, this plaintiff, being the wife of the said Salvatore Rosso, the insured, was named and appointed the sole and only beneficiary, and is the only person entitled to the proceeds of said policy.

That Salvatore Rosso, the insured, is now dead, and by his last will and testament, duly admitted to probate in the chancery court of Wilkinson county, said state, made and constituted the plaintiff, being his widow, his sole and only legatee, devisee, and inheritor of any and all property owned by him at the time of his death. That, after the payment of the said premium to the defendant and while the said policy of insurance, and agreement and promise to pay the monthly income of one hundred dollars was in full force and effect, Salvatore Rosso, became so disabled by bodily injury or disease that he was wholly prevented from performing any work, from following any occupation, or from engaging in any business for remuneration or profit. That the said disability occurred after the said policy took effect and before the anniversary of the policy on which the insured's age at nearest birthday was sixty. That upon the application of the said Salvatore Rosso, the insured, to the defendant for the payment of the monthly income of one hundred dollars, as agreed, the defendant fraudulently and illegally attempted to cancel and annul the said policy and refused to pay the said monthly income, or any part thereof, and fraudulently and illegally attempted to claim that said policy, agreement, and contract had never been in force, and was not enforceable. That, due to the fraudulent and illegal action of the defendant, the said Salvatore Rosso, the insured, was unable to make and supply to the defendant the said due proof of said total and presumably permanent disability.

That under the terms of the policy, agreement, and contract in the month of January, 1927, the said Salvatore Rosso became totally and presumably permanently disabled, and remained in such condition of total disability caused by bodily injury or disease, so that he was wholly prevented from performing any work, from following any occupation, or from engaging in any business for remuneration, from said month of January down to the 28th day of October, 1927, when said Rosso, by reason of said bodily disease, died.

She averred that the total period of such disability was the period of ten months, whereby the said defendant, under the said contract and agreement, was liable to pay said Rosso, the insured, the said sum of one thousand dollars; that during the period of disability Rosso paid the semi-annual premium of the sum of four hundred eighty-eight dollars and twenty cents, and included in which was the said sum of twenty-eight dollars and seventy cents, for the disability benefit so promised, agreed, and contracted to be paid; that in said agreement, promise, and contract it was a part that said defendant would waive and excuse the payment of said premium during the period of continuous total disability, and that at the time of said payment he was in said condition of continued total disability under the terms of the contract; that, at the time of the death of the said Rosso, the insured, there was due and payable to him the total sum of one thousand four hundred eighty-eight dollars and twenty cents; and that, under the provisions and terms of his last will and testament and by the terms of the said agreement and contract, the amount of disability benefits aforesaid was due and unpaid, and remained unpaid at the death of said Rosso, and was now payable to plaintiff--wherefore she demanded judgment for said amount.

The defendant filed the plea of general issue and several special pleas setting up the sections of the policy sued upon, for reasons immaterial to state here, and also filed a plea of res adjudicata in which it was alleged that the plaintiff ought not to have any recovery in this cause of action because on or about the 31st day of January, 1928, she (Concitinna Rosso) impleaded the New York Life Insurance Company, this same defendant, in the circuit court of Wilkinson county, the same court in which this action is now pending and which was a court of competent jurisdiction, and then and there had jurisdiction of the parties and the subject-matter, in an action on the identical policy of insurance here sued on, and therein sought to recover the sum of ten thousand dollars the face value of said policy, with interest, and the further sum of two thousand five hundred dollars as additional...