American Nat. Ins. Co. v. Reed

SAMFORD, Judge.

The complaint as finally amended consisted of three counts, declaring on two policies of insurance issued on the life of Thos. L. Reed and payable to Gertrude Reed, his wife, as beneficiary. The policies, by a separate clause, provided for the payment of an additional amount equal to the amount named in the face o'f the policy in case of death by accident. Death of the insured is admitted and payment was made by "defendant and accepted by plaintiff of the amount named in the face of the policy as indemnity in case of death by natural causes. Suit is hpre instituted to recover upon the clause providing for an additional amount in case of death caused by accident, etc., and generally referred to as the double indemnity clause in the policy.

Count 1 is in Code form for suit on a policy of life insurance and the point is taken by demurrer that the claim is for death by accident and that the count is defective. This point, however, is expressly waived in brief of counsel for appellant and for that reason is not passed upon in this opinion. Suggestion is, however, made that if the suit is on an accident contract and not on a policy of life insurance, what becomes of defendant’s plea of accord and satisfaction which sets up payment alone of the amount due for death by natural causes?

The first issue raised by the assignments of error is as to whether the evidence justifies a finding by the jury that the insured came to his death by “bpdily injury, solely through external, violent and accidental means” within the terms of the policy contract. In a case wherein this same question was raised and the evidence adduced was substantially as appears in the case at bar, our Supreme Court held that the question ^was for the jury and affirmed the judgment of the court. In view of that holding we do not feel authorized to reach a different conclusion, and upon the authority of that case we hold that the rulings of the court upon objections and charges affecting this point are free from error. Republic Iron & Steel Co. v. Reed, 223 Ala. 617, 137 So. 673.

The only other question is as to whether the payment of $748.10 by check drawn by defendant and payable to plaintiff and indorsed and collected by her was in full accord and satisfaction of the two policies sired on in this case; the check containing the statement in its face the following; “Endorsement hereon by the payee shall constitute a receipt for the amount hereof in full settlement of death claim under policies 5924103 and 6102915 upon the life of Thos. L. Reed, deceased.”

Under our statute Code 1923, § 7669, all receipts, releases, and discharges in writing, whether of a debt of record or a contract under seal or otherwise, must have effect according to the intention of the parties thereto.

C. M. Owens, superintendent of defendant, at Lewisburg, had charge of the settlement of this death claim with plaintiff. The two policies were turned over to him at his request, after which he filled out the death claim on blanks sent him by the company, the check for $748.10 was sent to Owens, to be delivered by him to plaintiff, which he did. Owens testifies that plaintiff accepted the check without protest after he had told her the company would not pay the double indemnity. Plaintiff testified, and there was other evidence tending to prove that when the check was tendered her she accepted it with the understanding that if the courts should hold, in the case of Republic Iron & Steel Co. v. Reed, that Reed’s death was accidental, the company would pay the additional amount provided in the policy for accidental death.

Evidence was introduced by defendant tending to prove that Owens was merely a soliciting agent and as such had no authority to bind the defendant by waiver or admission. If Owens was such an agent, then he would have no such authority, but in this case there is evidence from which the jury might infer that Owens had authority in this matter beyond the letter of his contract and that he had authority at least to induce plaintiff to accept and cash the check. At least the defendant had knowingly placed in the hands of Owens papers and letters relative to the settlement of the death claim of Reed which permitted him so to act as to justify this plaintiff in believing that he had authority to make the statement regarding the settlement that the check was accepted subject to the finding of the Supreme Court in a case then pending. Defendant is, therefore, estopped to deny the agreement by which the check was delivered and accepted. 32 Corpus Juris, 1059(135).

There is another proposition which under one phase of the evidence would preclude a recovery by defendant on its plea of accord and satisfaction. The policy contract was dual in its obligation to pay: (1) Indemnity for death of insured in any event. (2) An additional amount equal to the face of the policy in case the death was by accident. There was no controversy between the parties as to the first of these obligations, and when defendant drew its check and caused it to be delivered in the exact amount of the first obligation, it did no more than to.pay the amount admittedly owing by it under the policy, without reference to the second obligation'under the contract, and the payment of this amount was no consideration for a release of the second obligation. That which one is unqualifiedly, confessedly obliged to do cannot afford consideration for another contract. No detriment because of the payment of the $748.10 accrued to the defendant; and no benefit to which plaintiff was not already entitled accrued to her because of the payment of the sum. There was no consideration for the, in effect, new agreement of which defendant could avail itself through its plea of accord and satisfaction. The foregoing is paraphrased from the opinion in Abercrombie v. Goode, 187 Ala. 310, 65 So. 816. To the same effect is the case of American Workmen v. James, 14 Ala. App. 477, 70 So. 976.

We find no error in the various rulings of the court on this point.

There being no error of a reversible nature found in the record, the judgment is affirmed.

Affirmed.