78 So. 778 | Miss. | 1918
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
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
"We have examined carefully the authorities cited in fhe briefs of the appellant and appellee, and we find
“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-.*843 do 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.