Cunningham v. Union Casualty & Surety Co.

82 Mo. App. 607 | Mo. Ct. App. | 1900

SMITH, P. J.

The defendant executed and delivered to plaintiff an accident insurance'policy, by the terms of which the former insured the latter against bodily injuries sustained •through external, violent and accidental means, and thereby bound itself to pay the indemnity provided in the schedule thereto, as follows:

* *

“(O) Or, if loss by actual severance at or above the wrist or ankle of one hand or of one foot shall so result within ninety days, the company will pay one-third the principal sum before named, which payment shall terminate the policy and discharge the company.

“(D) Or, if the irrecoverable loss of the sight of one eye shall so result within ninety days, the company will pay one-eighth of the principal sum of the policy, which payment shall terminate the policy and discharge the company.

“(E) Or, if such injuries, independently of all other causes, shall immediately, continuously and wholly disable and prevent the insured from engaging in any work or occupation for wages, the company will pay $12.50 per week during the continuance of such disability for a period not exceeding fifty-two weeks.”

On June 26, 1898, plaintiff fell-from a tree, in consequence of which he received several bruises, contusions and cuts about the head, and of which accident prompt notice was given the defendant.

On the twenty-fifth of July, following, the plaintiff presented to defendant a claim for $51.78 as indemnity for loss of time from his occupation which had resulted to him in consequence of the said injury. The defendant allowed the plaintiff’s claim and on July 28, 1898, mailed him a check therefor, which was accompanied by a voucher which was signed by plaintiff and returned to defendant, and which recited that, in consideration of the payment of $51.78 he thereby discharged and released the defendant'from all claims for indemnity under said policy resulting from the said accident.

On August 4, 1898, the plaintiff gave the defendant another notice of the receipt of his said injury, wherein it was stated that since said accident he had lost the “entire sight” in his left eye. It is conceded “that plaintiff was so injured that he sustained immediate, continuous and total loss of time for the prosecution of every kind of business pertaining to his occupation during the space of four weeks and one day. That as a part of the aforesaid injuries resulting from such striking, plaintiff’s left eye was hurt; that he noticed that it was getting bad and that the sight thereof was failing about two or three weeks after the said fall; that tbe eye continued steadily to grow worse and the sight thereof to fail, and about the first of August, 1898, plaintiff became convinced he would lose the sight of that eye, and he did irrecoverably lose the sight of his left eye on or about August 4, 1898.”-

This suit was brought on said policy to recover three hundred and twelve dollars and fifty cents — or, one-eighth of the entire indemnity provided in the policy where the irrecoverable loss of the sight of one eye results from the injury within ninety days thereafter. The defendant in its answer alleged that the plaintiff had received and accepted said sum of fifty-one dollars and seventy-eight cents in full payment and settlement for the injuries resulting from the said accident and had signed and sealed a written instrument to that effect, in and by which in consideration of said payment plaintiff released and discharged defendant from all claims for indemnity under said policy. The said release was pleaded in bar of the plaintiff’s action.

There was a trial before the court on a statement of facts agreed, which resulted in judgment for plaintiff and from which defendant appealed.

It is not disputed but that the plaintiff, under the policy, was justly entitled to the indemnity paid him for loss of time from business resulting to him from the accidental injury which he sustained. But it is contended, in view of the fact-that plaintiff, in consideration of the receipt of the indemnity specified in provision “E” of the policy schedule, had executed the release pleaded, which, by its terms, discharged defendant from liability from all claims for indemnity under the policy resulting from said injury, that the plaintiff is not entitled to the indemnity claimed by him under provision “D” of the said schedule. The payment of the $51.18 was the consideration for the discharge of the defendant from its liability for indemnity for disability mentioned in provision “E” of the said schedule.

If its terms are such as to discharge defendant from liability to pay indemnity for disabilities specified in other provisions of said schedule, it can not in so far be held inoperative since there is no consideration therefor moving from the defendant to plaintiff. Wesson v. Horner, 25 Mo. 81. The payment made was for loss of time entailed by the plaintiff’s disabilities. The liability for indemnity for the irrecoverable loss of the eye was not in contemplation of the parties at the time of the payment, for such loss 'had not then occurred; so that the payment could not have been in discharge of any such liability. The release was byoader than its supporting consideration. The consideration for the discharge of one liability does not necessarily constitute the consideration for the discharge of another, different and independent liability. Redfield v. Ins. Co., 56 N. Y. 354.

Looking at the receipt, which is termed a “release,” in the light of the facts agreed in the case and we must conclude that it was intended to extend only to such claims for indemnity as should be made under provision “E” of the schedule. The purpose of the receipt, no- doubt, was to preclude the plaintiff from making any further claim for indemnity under that provision of the schedule. It follows therefore, that the release pleaded constitutes no bar to the plaintiff’s action.

But the defendant invokes the application of the principle of the maxim, “memo debt bis vexari pro una et eadem causa.” It is trae that it is the well-settled rale of law in this state that an entire claim or contract, or a wrong done can not be divided or split up and made the subject of several suits. Ruddle v. Horine, 34 Mo. App. 616; Green v. Von der Ahe, 36 Mo. App. 394; Moran v. Plankinton, 64 Mo. 337; Railway v. Traube, 59 Mo. 355.

But this rale is not of universal application. The prohibition of the rale “presupposes knowledge of the constituent elements of a cause of action sought to be unwarrantably divided. If this be true, and it be true also that the law does not require what is impossible, then it must needs follow that a party should not be precluded in consequence of a former action, if such action were brought in unavoidable ignorance of the full extent of the wrongs received or injuries done.” Moran v. Plankinton, 64 Mo. 337; Earrington v. Payne, 15 Johns. 432; Eesley v. Squires, 53 Barb. 280. At the time of the payment of the indemnity for the disability specified in said provision “E,” the plaintiff did not know that he would irrecoverably lose the sight of his left eye. It is conceded that the plaintiff’s eye was hurt by his fall and that he noticed two or three weeks thereafter that it had grown worse, and that his sight had continued to fail, but that he did not feel that he would lose it until about the first of August. It is not disputed that he irrecoverably lost his sight a few days later. It does not appear that he was advised by his physician or that he knew, or could have known, at the time of the receipt of the indemnity that he would irrecoverably lose the sight of his eye. He then had no claim for indemnity for the loss of an eye. The plaintiff’s claim for indemnity for the loss of the sight of his eye falls within the exception to the rule just stated, and therefore his right of action thereon is not foreclosed by the acceptance of the indemnity for loss of time.

It is in this connection to be further observed that it has been ruled in this state that where several claims, payable at different times, arise out of the same contract or transaction, separate actions may be brought as each liability accrues, but where no action is brought until more than one is due, all that are due must be included in one action; and if an action is brought where more than one is due, a recovery in that action will be a bar to a second action brought to recover the other claims that were due when the first was brought. Railway v. Traube, 59 Mo. 355; West v. Moser, 49 Mo. App. 201. Here were two claims for indemnity arising under different provisions of the policy, each payable at different times, and no reason is perceived why separate-actions could not have been brought on each. The-situation of the parties to this action would not- have been different if tbe plaintiff had reduced bis first claim for indemnity to judgment and tbe defendant were relying on tbat instead of tbe supposed release as a bar. If tbe judgment would bar so would tbe release.

If tbe plaintiff bad first claimed and obtained indemnity for tbe loss of bis eye under provision “D” of tbe policy schedule' tbat, by tbe terms thereof, would have discharged the policy; but tbe payment of plaintiff’s claim for indemnity under provision “E” bad no such effect. ’ It is apparent from tbe very terms of tbe latter provision tbat no such effect was contemplated by it. But it is insisted tbat under tbe policy tbe plaintiff could have but one indemnity for tbe disabilities resulting from bis injuries. If tbe plaintiff bad lost an eye and a band by reason of tbe injury, be would have been entitled to indemnity for tbe former under provision “0,” and for tbe latter under provision “D,” but not under both, for it is provided in each tbat tbe payment of indemnity thereunder shall terminate tbe policy. 'So tbat a payment under one of these provisions would render tbe policy nugatory as to all tbe others. But tbe payment of indemnity claimed under provision “E” is not attended with any such consequences.

It may be tbat tbe policy provisions in relation to indemnity are capable of a meaning different from tbat which tbe- plaintiff contends. Unquestionably, these provisions are capable of two meanings. Tbe rule is, tbat where tbe provisions of a policy are capable of two meanings, tbat meaning must be applied which is tbe most favorable to tbe 'assured, even though it was intended otherwise by tbe insurer. Hoffman v. Ins. Co., 56 Mo. App. 301; LaForce v. Ins. Co., 43 Mo. App. 530; Hale v. Ins. Co., 46 Mo. App. 508. Applying this rule to tbe provisions of tbe present policy relating to indemnity and it is clear tbat we must adopt tbe plaintiff’s interpretation and bold the defendant liable.

It results that tbe judgment must be affirmed.

All concur.