General Accident, Fire & Life Assurance Corp. v. Harris, 78 So. 778

General Accident, Fire & Life Assurance Corp. v. Harris

78 So. 778 | Miss. | 1918

Sykes, J.,

delivered the opinion of the court.

The appellee, Cecil A. Harris, sustained an injury to his left thigh on December 24, 1913. This injury is described in the surgeon’s statement of it,' as a “dislocation apd fracture of left thigh (hip joint).” At the time of this injury he had an accident policy in the appellant insurance company which provided, among other things, that for a total disability resulting’ from an accident of this character the company would pay the insured at the rate of twenty dollars a month *839for a period not exceeding twenty-four months. Under the terms and provisions of this policy this premium or amount was not due until after the final proofs of disability had been submitted to the company, and the company had had a reasonable time to investigate and pay the same. Mr. Harris during his disability was treated by a physician of his own selection, who was in no way connected with the appellant insurance company. On April 2, 1914, Mr. Harris ■ submitted his final report of his accident under the policy. As a part of this report was a statement signed by his physician or surgeon describing his injuries as above set' out. This statement of the surgeon further says that he (appellee) was able to resume part of his wort on March 25th, and all of his work on April 1st. In other words, he was partially recovered on March 25th, and entirely recovered on April 1st, the. day the statement was signed. This surgeon’s certificate is signed, “W. H. Williams, M. D., Attending Surgeon,” and dated April 1, 1914. Mr. Harris in his individual statement described his injury as “dislocated hip,” and that that leg is three-fourths of an inch shorter than the other. He further states that he has done nothing but light work, which he commenced to do on March '25, 1914. Upon this final proof of disability the appellant insurance company made a settlement in full with Mr. Harris for the injury sustained by him above mentioned for the amount of sixty dollars. Mr. Harris duly signed a release to this effect. After this settlement was made Mr. Harris did not improve as rapidly as he had expected from the injury; in fact, was unable to do any work,' or any appreciable amount of work, for about two years, and is probably permanently disabled from the injury. After the final settlement was made with the company, no further reports showing how he was getting along, which are required to he made under the terms of the policy, were made to *840the company. In fact, Mr. Harris, as well as the company, for some time acted as if lie had made a settlement in full for all his injuries with the company. Some time after, he discovered that he was more severely injured than he thought at the time he made the settlement; he was examined by other physicians and an X-ray was made of his injury, which showed a more-severe injury than perhaps Mr. Harris thought at the time he made the settlement. After this examination,. Mr. Harris reported the fact to the local agent of ■ the-company in his home town. Nothing further was done-hv him until he tiled his hill of complaint in the chancery court of Lawrence county in December, 1915. In this hill he states that at the time he made the settlement he was mistaken as to the character, nature, and extent of' his injury; that he had been informed by his physician that his disability would not extend beyond a period of three months. • He asks that this-release be rescinded and canceled, and that he be allowed to recover for a total disability of twenty-four months at the rate of twenty dollars a month. Upon the foregoing facts the chancellor sustained the prayer of a bill and rendered a decree in complainant’s favor accordingly, from which decree this appeal is prosecuted.

It is contended by the appellee, Harris, that he is entitled to have the release set aside because at the time it was executed, first, there was a mutual mistake of fact upon his part and that of the company as to the nature, character, and extent of his injury; second, if not a mutual mistake, it was at least a mistake upon his part; third, that at the time of making the settlement under the policy he was already entitled to the sixty dollars for which he settled, consequently there was no consideration for a release in full by him under the policy, but that the consideration only-related to the three months he had already been totally disabled. The policy in this case provides that *841for total disability the insured is to be paid at the rate of twenty dollars per month, but this payment is not due until final proof of total disability has been made. In other words, no amount whatever was due Mr. Harris under the policy until the final proof of total disability was made. Had he desired to wait until he was sure of the extent of his injuries under this policy, he would have waited for a period of twenty-four months, when he would have been entitled to a settlement at the rate of twenty dollars a month for twenty-four months. He evidently thought, however, that he had practically recovered at the end of three months, and he and his physician so reported the fact to the company, and made a claim' for only •sixty dollars for the injury. It is his contention that at this time he was mistaken as to -the nature and extent of his injuries; that he thought his hip was only ■dislocated. The accompanying statement of his surgeon, however, shows that his hip was both dislocated and fractured, and this appears to have been the true state of the case. He must have been .mistaken of course as to the extent of his. disability. At the time he made the settlement he thought he had practically recovered. In this he was evidently mistaken. There was no fraud or misrepresentations whatever to him on the part of the appellant company. In fact, he was never examined by a surgeon of the company. The reports of himself and his attending surgeon were accepted by the company as being correct, and a settlement made with him according to his claim. In the statement of his surgeon, the nature and extent of his injuries are described as a fracture and dislocation. This the appellee certainly knew. .The only mistake at all was as to the extent of the duration of his disability.

"We have examined carefully the authorities cited in fhe briefs of the appellant and appellee, and we find *842no well-considered cases that support the contention of appellee that under this statement of facts a court of equity should set aside a settlement duly entered into between the parties. The appellee, among other authorities, cites 6 Thompson on Negligence, par. 7378, as sustaining his contention that the release' should be set aside because of a mistake of fact as to the nature and extent of the injuries of the appellee. It will be found from an examination of this section, however, and. the authorities cited thereunder, that when the mistake is a mere matter of opinion, as it. was in this case, as to the length of time the injured party would be disabled, and no fraud or misrepresentations were practiced upon him by the other party, the release will not be set aside. The contentions of' the appellee in this case have already been adversely decided in the case of Railway Co. v. Turnbull, 71 Miss. 1029, 16 So. 346. In the Turnbull Case the' settlement was made upon the representations of the' attending physician, who was a surgeon of the railway company. These representations were made in good faith as to the extent of Turnbull’s injuries, but the physician was honestly mistaken in them. Acting' upon these representations Turnbull settled for a ve-ry small amount, not at alj commensurate with the' injury. The court in that case in part says:

“It wa.s, however, the expression of an opinion only —an opinion, in our judgment, reasonably founded upon the then existing conditions. It turns out that the unhappy man’s injuries were lasting and very much more serious than was then supposed; but we are not to pass upon the then apparent state of the hurt in the-light of the after developments of the case. The most learned and accomplished man in the medical and surgical ranks makes no pretense to pierce the darkness of futurity and foretell its secrets. He looks at. what is before him and judges for the present, just as-. *843do all others. The opinion of the physician in this instance was an honest one, a reasonable one, a just one as the case then stood. . . . Hard as the ap-pellee’s case appears to he, we cannot open the door to unsettle the faith of men dealing with each other in the binding force of contracts solemnly entered into, by avoiding the effect of this release upon the wholly unsatisfactory evidence of fraud or misrepresentation found in appellee’s testimony.”

In the case under consideration there was no contention of fraud or misrepresentations, but merely of a mistake. The mistake of the appellee, however, in this case was no more than the mistake of Turnbull in the above case. The rule is well stated in volume 1, Corpus Juris, p. 481, section 209, under the head of Accident Insurance:

“A release of all claims on. account of an injury received, made by insured in the belief, induced by honest representations of his own and the insurer’s physician that he has fully recovered from the injury, bars any recovery for a further loss of time or death resulting, from the same injury, on either the original or a substituted policy.”

.The case of Wood, Adm’x v. Insurance Co., 174 Mass. 217, 54 N. E. 541, is also in point.

The consideration for this settlement was the payment of the money within a reasonable time after the final proofs of loss had been made to. the company. The appellee had a right to make a settlement at that time, and having made it he took'his chances as to his future physical condition. He was paid every cent he asked, upon final proofs of loss made by himself and his physician, and he cannot now complain that he was mistaken as to the extent of his disability.

It follows that the lower court erred, and that the decree will be reversed, and the bill dismissed.

Reversed.