American Nat. Ins. Co. of Galveston v. Golden

Sykes, P. J., delivered the opinion of the court. Suit was brought upon an insurance policy in the circuit court by Carrier Golden, as beneficiary in said policy issued by the appellant (defendant insurance company) insuring the life of J. H. Golden, and also providing certain indemnities payable to the insured in case of accident. The insurance policy is made an exhibit to the declaration. The declaration alleges, and the policy also shows, that it was issued on April 27, 1922. The declaration further alleges that J. I-I. Golden died on or about June 3, 1922, from an attack of appendicitis. The declaration alleges that plaintiff made demand upon the insurance company for blanks on which to make proof of death, but that it refused to furnish these blanks, thereby waiving proof of death. The amount sued for is six hundred dollars. [287] Process was duly issued and served but the defendant failed to appear. Judgment by default was taken. A writ of inquiry issued, and a jury assessed the damages under the policy at the amount sued for; whereupon defendant appeared, made a motion for a new trial, and took a special bill of exceptions to the ruling of the judge overruling the motion. From this bill of exceptions it appears that the only testimony introduced before the jury was the insurance policy. : It is contended by the appellant in this court that the policy of insurance, when considered with the declaration, demonstrates that the verdict is excessive; that the maximum amount of recovery in this case can only be one hundred dollars. The appellee contends that the statute of jeofails (section 808, Code of 1906; section 596, Hemingway’s Code) cures all defects in this judgment. The declaration avers and the policy shows that the policy was issued on April 27, 1922, and that the insured died of appendicitis on June 3, 1922, while the insurance policy was in force. These facts are properly pleaded, and it only remains to- turn to the policy to ascertain what insurance this beneficiary is entitled to recover for this sickness and death of her husband. The statute of jeofails cures a defective pleading which attempts to state a couse of action, but does not embrace a new or distinct cause of action. Its purpose is merely to help out an imperfect statement of a. cause of action, but not to introduce a distinct or independent one. Hamer v. Rigby, 65 Miss. 41, 3 So. 137. See, also, Break v. Smith, 44 Miss. 690, and Reid v. Gregory, 78 Miss. 247, 28 So. 835. There is nothing, however, imperfect in the statement of the cause of action is this case.' It is for all benefits accruing to the beneficiary because of the death of her husband from appendicitis. Turning now to the clauses of the policy which determine this recovery, they are F, I, and V. The material portions of V are that, in the event of any claim arising under this policy due directly to appendicitis, benefits shall be paid solely under sickness benefits [288] as provided under paragraph F or G (G not being material here). F. At the rate of fifty dollars per month for a period not exceeding eight consecutive months, during which the insured shall be necessarily and continuously confined to the house, and therein regularly visited at least once every seven days by a .legally qualified physician, and wholly disabled and prevented by bodily disease or illness from performing any and every duty pertaining to any business or occupation. Monthly indemnity, fifty dollars. I. Natural Death Benefit. Or, if death of the insured, over eighteen and under fifty years of age, shall occur while this policy is in force, resulting alone from any disease or sickness, originating after this policy has been continuously in force and effect for not less than ten days without delinquency, immediately preceding the beginning of “such illness,” the company will pay, in addition to any other indemnity, a sum equal to one month’s indemnity provided under paragraph F for total disability. In this case the insured was under fifty years. Construing these clauses of the policy most strongly in favor of the beneficiary and against the insurance company which prepared it, and assuming that the plaintiff in the court below could have proven for the maximum amount alloived under provision I of this policy, the insured could have been taken with appendicitis ten days after the policy was issued and been continuously confined to the hospital and visited by a physician until his death, thereby entitling a recovery for a month’s total disability under paragraph F. In addition thereto, under paragraph I she is entitled to recover an equal sum, making in all one hundred dollars. Under the allegations of the declaration and the insurance policy, which is a part thereof, this is the maximum amount of recovery to which plaintiff is entitled. Kéversed, and judgment will, be entered here in favor of the appellee for one hundred dollars. Reversed.