John Hancock Mut. Life Ins. Co. v. Johnson

Counsel

C. A. Wolfes, of Fort Payne, and Cabaniss Johnston and L. D. Gardner, Jr., all of Birmingham, for appellant. On appeal in an equity case, where the testimony was not taken orally before the judge, no weight is to be given his decision, but the appellate court will weigh the evidence and give judgment as it deems just. Code 1923, § 10276 (1); Hodge v. Joy, 207 Ala. 198 , 92 So. 171 ; Fannin v. Trotter, 215 Ala. 17 , 109 So. 102 . Where the policy contract requires the disability to be both total and permanent, the risk has not occurred when insured's total disability is merely temporary. Metropolitan L. I. Co. v. Blue, 222 Ala. 665 , 133 So. 707 , 79 A.L.R. 852. In suit on contract for payment of a sum of money in installments, the only recoverable damages are the installments in arrears at the time suit is filed, with interest. Fowler v. Armour, 24 Ala. 194 , 197 ; 17 C. J. 1085. And the court cannot enter judgment for the payment of future installments as they become due. State Life Ins. Co. v. Atkins (Tex.Civ.App.) 9 S.W.(2d) 290 ; Mid-Continent L. I. Co. v. Walker, 128 Okl. 75 , 260 P. 1109 ; Green v. Inter-Ocean Cas. Co., 203 N.C. 767 , 167 S.E. 38 . If the court had been authorized to enter judgment for future installments payable upon total and permanent disability, it was the duty of the court to retain control over the judgment so that it could be modified as occasioned by changed conditions. Melancon v. Provident L. A. Ins. Co., 176 La. 1055 , 147 So. 346 ; Brix v. People's M. L. I. Co. (Cal.App.) 29 P.(2d) 233 ; Equitable L. A. Soc. v. Preston, 253 Ky. 459 , 70 S.W.(2d) 18 . Scott Dawson and Thos. W. Millican, all of Fort Payne, for appellee. Brief did not reach the Reporter. This litigation originated in an action at law brought by the appellee, Ressie L. Johnson, against appellant insurance company for the breach of a condition of a group policy of insurance issued by it on the application of W. B. Davis Son, Inc., of Fort Payne, Ala., insuring the lives of the employees of said Davis Son, with provision for total permanent disability. The plaintiff in the action at law was such employee, and her life was insured under said policy in the sum of $1,000. The action was for the breach of the total permanent disability clause, which is in the following language: " Permanent Total Disability Benefit. If any employee shall furnish the Company with due proof that while insured under this policy and before having attained the age of sixty, he has become wholly disabled by bodily injuries or disease, and will be permanently, continuously and wholly prevented thereby for life from engaging in any occupation or employment for wage or profit, the Company will waive further payment of premium as to such employee and pay in full settlement of all obligations to him under this policy the amount of insurance in force hereunder upon his life at the time of the receipt of due proofs of such disability, in a fixed number of installments chosen by the employer from the table in the paragraph entitled 'Modes of Settlement,' the first installment to be paid immediately upon receipt of due proofs of such disability. Any installments remaining unpaid at the death of the employee shall be payable as they become due (to) the beneficiary designated by the employee. Such remaining installments may be commuted in one sum on the basis of interest at the rate of three and one-half per cent per annum." (Italics supplied.) The defendant filed a plea in abatement of the suit, averring that at the time the action was brought "the employer had not designated the mode of payment, nor had it chosen the number of installments in which said benefits were to be paid, if the defendant were liable therefor under the policy." The plaintiff demurred to this plea on the grounds, among others, that "said plea shows upon its face that the defendant has waived its right to pay in installments selected by the employer;" that "said plea fails to own that the defendant has made any effort to secure a selection of installments by the employer;" that "said plea does not admit liability, nor own that the employer had refused to designate the number of installments by which defendant should pay." The demurrer was sustained, and the defendant then demurred to the complaint, and its demurrer was overruled. The defendant thereupon filed motion to transfer the case to the equity docket, setting out in the motion the provisions of the total permanent disability clause, and alleging that said policy contained a table of installments running from one to twenty years, and "that at the time this suit was brought the employer had not designated the mode of payment, nor had it chosen the number of installments in which said benefits were to be paid if the defendant were liable therefor under the policy, nor had any request been made of said employer to designate the number of installments in which said benefits were to be paid;" that no such designation has been made since the suit was filed, and "said employer being nowise a party to this suit, and no process being available in this law court whereby said employer can be made a party to this cause of action, said jury would be without authority to fix or assess the damages due the plaintiff." This motion was granted without objection, and thereupon the defendant filed its original bill against the plaintiff, without making the employer a party defendant, denying its liability, and praying, in the event it was held liable, that the provision of the contract conferring on the employer the power of designating the amount and number of the installments be specifically enforced. The defendant to the bill, the plaintiff in the action at law, made no objection to the sufficiency of the bill, but filed an answer, asserting the complainant's liability under the permanent total disability clause, making her answer a cross-bill, and praying for affirmative relief. The testimony was taken before the register, by agreement of the parties, and the case was submitted by agreement of the parties for final decree, upon the pleadings and proof, noted by the register. On July 9, 1934, the court entered a decree ascertaining and adjudging that the defendant to the bill was entitled to relief on her cross-bill, and ordered the employer, W. B. Davis Son, Inc., to appear and designate the number of installments for the discharge of the liability. The employer, without being made a party, appeared and designated "Monthly installment payments over a period of 15 years, each monthly installment payment being the sum of $7.10." The court thereupon entered a final decree, which follows: "This cause comes on for final decree and W. B. Davis and Son, Inc., having designated the number of payments in which the judgment heretofore rendered by this Court shall be made, the Court is of the opinion that since the defendant became disabled and presented her proof thereof to the plaintiff on the 10th day of April, 1933, and that the first installment (of) said disability benefits should have been paid on the 1st day of May, 1933, and one of such payments should have (been) made on the first day of each month thereafter, including the first day of July, 1934, and that the complainant is now fifteen installments in arrears in said payments, and that said installments bear interest at the legal rate from their due date and that said arrearage now amounts to one hundred eleven 75/100 dollars; and that the judgment for the remainder of said payments beginning on the first day of August, 1934, and that one of said installments shall be paid by the defendant to the Register of this Court until 165 of said installments shall have been so paid, and that said judgment should be made final and binding upon the parties. "It is, therefore, ordered, adjudged and decreed by the Court that the complainant pay into the office of the Register of this Court the sum of $111.75 for the use and benefit of the defendant not later than the 15th day of August, 1934, final judgment for which is here rendered, and pay the cost of this proceeding; And it is further ordered, adjudged and decreed by the Court that the defendant have and recover of the complainant, the further sum of $1171.50 which the complainant may discharge by payment to the Register of this Court by making a payment of $7.10 on the first day of Sept. 1934, and a similar payment to said Register on the first day of each month thereafter until the full amount of each shall have been paid, which said judgment shall be final and conclusive between the parties to this suit and their assigns." This appeal is by the complainant insurance company. There is neither cross-appeal nor cross-assignment of errors by the defendant in equity.