Aetna Life Insurance Company v. Langston

• Decision Date: 26 November 1934
• Docket Number: 4-3609
• Citation: 76 S.W.2d 50,189 Ark. 1067
• Parties: AETNA LIFE INSURANCE COMPANY v. LANGSTON
• Court: Arkansas Supreme Court

76 S.W.2d 50

189 Ark. 1067

AETNA LIFE INSURANCE COMPANY v. LANGSTON

4-3609

Supreme Court of Arkansas

November 26, 1934

Appeal from Union Circuit Court, Second Division; W. A. Speer Judge; affirmed.

Judgment affirmed.

Owens & Ehrman, for appellant.

Surrey E. Gilliam, for appellee.

OPINION

JOHNSON, C. J.

This action was filed by appellee against appellant on March 8 1933, seeking a recovery upon a certain insurance policy issued by appellant in favor of appellee on August 2, 1921 the pertinent provisions thereof being: "If the insured becomes wholly, continuously and permanently disabled and will for life be unable to perform any work or conduct any business for compensation or profit, or has met with the irrecoverable loss of the entire sight of both eyes, or the total and permanent loss by removal or disease of the use of both hands or of both feet, or of such loss of one hand and one foot, and satisfactory evidence of such disability is received at the home office of the company, the company will, upon the acceptance of such proof, if all premiums previously due have been paid, waive the payment of all premiums falling due thereafter during such disability, and if such disability existed before the insured attained the age of sixty years, the company will immediately pay to the life beneficiary the sum of ten dollars for each thousand dollars of the sum insured and will pay the same sum on the same day of every month thereafter during the lifetime and during such disability of the insured.

"Any premium waived or monthly payment made by the company on account of this provision will not be deducted from any settlement under this policy, and the sum insured and loan and cash surrender value will be for the same amount as if the premiums waived had been paid in cash.

"The foregoing benefits for disability are conditioned upon the representatives of the company being permitted to examine the insured before the acceptance of proof and during twelve months thereafter."

Appellee alleged that prior to his sixtieth birthday and while the policy was in full force and effect he became permanently and totally disabled within the purview of said policy.

Appellant filed an answer to the complaint which denied all the material allegations thereof and affirmatively pleaded the five year statutes of limitation in bar of the action; also that no notice had been given by the insured to the insurer of the alleged injury until 1932. Upon the issues thus joined a trial to a jury was had on January 16, 1934, which resulted in a verdict and judgment in favor of appellee for the sum of $ 1,750.

The testimony was amply sufficient to support the jury's finding that appellee was totally and permanently injured prior to his sixtieth birthday and at a time when the policy was in full force and effect, but, since this point is not now urged upon us for consideration, we do not detail the testimony in reference thereto.

Appellant urges that appellee's alleged cause of action is barred by §§ 6955 and 6960, Crawford & Moses' Digest, because as it is argued the suit was not filed within five years after appellee attained his sixtieth birthday, and that the suit was not brought within five years after receipt of his total and permanent disability.

We have never held that suits upon insurance policies similar to the one under consideration must be brought within five years after receipt of total and permanent disability; neither have we ever held that such suits must be brought within five years after the insured attained the birthday designated in the policy as limiting liability thereunder.

In AEtna Life Ins. Co. v. Davis, 187 Ark. 398, 60 S.W.2d 912, we stated the applicable rule as follows: "If, therefore, the disability exists and commenced when the contract was in force, it is immaterial how or when proof is made, if within the statutory period, and recovery may be had for the damage sustained, excluding that occurring beyond six months from the time proof is made. As stated in the case of Hope Spoke Co. v. Maryland Cas. Co., supra, the proof of disability is intended to give the insurer an opportunity to investigate the facts affecting the question of its liability and the extent thereof. This end is served when the complaint is filed, and no prejudice can result if, as in the instant case, no claim is made for benefits accruing before the filing of the complaint or the statute (Crawford & Moses' Digest, § 6155) prescribing a penalty or attorney's fee is not invoked."

Again in Missouri State Life Ins. Co. v. Foster, 188 Ark. 1116, 69 S.W.2d 869, we reiterated the rule as follows: "We are definitely committed to the rule that liability attaches under contracts of insurance similar to the one under consideration, upon causation of the injury, and it necessarily follows from this that no subsequent act or acts of the parties can destroy the liability thus created."

And again in the more recent case of Equitable Life Ins. Society v. Felton, ante p. 318, 189 Ark. 327, 72 S.W.2d 225, we stated the rule in the following language:

"We have repeatedly held in cases arising under contracts of insurance not dissimilar to the one here involved that liability against the insurer and in favor of the insured attaches and comes into being upon the happening of total and permanent disability. * * * The requirement for proof of loss or notice under this contract being a condition subsequent, suit might be maintained for the liability at any time until barred by the statute of limitations."

The effect of the rule thus quoted is that, in policies of insurance similar to the one...