American National Insurance Company v. Mooney

• Court: Supreme Court of Arkansas
• Writing for the Court: MCCULLOCH, C. J.
• Citation: 164 S.W. 276,111 Ark. 514
• Parties: AMERICAN NATIONAL INSURANCE COMPANY v. MOONEY
• Decision Date: 23 February 1914

164 S.W. 276

111 Ark. 514

AMERICAN NATIONAL INSURANCE COMPANY
v.
MOONEY

Supreme Court of Arkansas

February 23, 1914

Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge; reversed.

Judgment reversed and cause remanded for new trial.

Horace Chamberlin and Wallace Townsend, for appellant.

1. The language of the statute unquestionably gives each party to a suit the right to present all his evidence, and anything less than that is, to that extent, a denial of the full right assured under the law. The refusal of the court, therefore, to allow appellant to finish its case amounted to a denial of the right of trial, and was reversible error. Kirby's Dig., §§ 6214 and 6196, part 3; 54 Ark. 124; 30 Ark. 312; 32 Ark. 585-589; 34 Ark. 383; 37 Ark. 562-571; 55 Ark. 163-180; 90 Ark. 272-277; 2 Dec. Dig. Appeal & Error, P 1056, § 1; 38 Cyc. 1450; 161 Ala. 494, 50 So. 96; 71 N.E. 266; 79 N.E. 402; 96 N.Y.S. 116.

The fact that the case was tried before a judge without a jury does not alter the rule. 62 P.574; 17 How. (U.S.) 6-12; 165 F. 283, 285, 286.

2. The suit was unauthorized. Notwithstanding the presumption in favor of an attorney's authority to act for a client, either party may question that right, and, where the party whom the attorney claims to represent denies his authority, the burden is on the attorney to show such authority. 4 Cyc. 928, 930, 931-6b; 1 Ark. 99, 105, 106; 2 Ark. 356.

3. The suit was settled by the release in full executed by the plaintiff. 71 N.Y. 443; 52 N.Y. 73; 14 N.W. 617; 8 Cyc. 505; Id. 516; 21 Ark. 69; 29 Ark. 131; 43 Ark. 172; 44 Ark. 556; 46 Ark. 217-220; 75 Ark. 354; 62 Ark. 432; 14 N.W. 617.

Miles & Wade, for appellee.

1. Under the facts set out in the record, the court did not refuse to allow appellant to finish its case nor deny to it the right of trial. The action of counsel amounted to a demurrer to the evidence, and when he said, "On the proof I would like to make a motion here that the case be dismissed," he made the proof a necessary part of his motion, and created the right to have the court to act on it. 4 Ark. 110.

It is not competent to reopen a case on the merits after final judgment is rendered under such circumstances. Id.; 90 Ala. 331; 120 Mass. 336; 4 How. (Miss.) 224; 6 Call (Va.) 53; 20 W.Va. 424. That the court did not err in overruling the demurrer to the evidence, see 38 Cyc. 1542.

2. The suit was in fact authorized as fully appears in the records.

The question of an attorney's authority to represent a client can not be raised except by motion directly for that purpose, supported by affidavits, and this motion must be filed before the plea or answer, if the facts are known; and the application to require a plaintiff's attorney to show his authority should be made and heard before the trial. 4 Cyc. 930, 931, and cases cited.

3. The twenty dollars due to the deceased for weekly indemnities amounted to more than enough to keep the policies in force and should have been applied by the appellant to that end. The policies were in force. 68 Ark. 505; 55 L. R. A. 605, and note; 23 L. R. A. (U.S.) 304, and note; 129 Mich. 444; 202 Mass. 524; 102 S.W. 163.

OPINION [164 S.W. 277]

[111 Ark. 517] MCCULLOCH, C. J.

This is an action on two insurance policies of the type known as industrial insurance. The policies provide for weekly payment of premiums and for sick benefits of a certain amount payable to the assured and a certain amount of death benefits payable to the beneficiary named in the policies. The plaintiff, Alice Mooney, is the beneficiary named in the policies, her brother, John Weatherall, being the one to whom the policies were issued and who was entitled to receive sick benefits. John Weatherall died and this action is to recover the death benefits provided for in the two policies. The actions were instituted before a justice of the peace, a judgment being rendered there in favor of the plaintiff and an appeal was prosecuted to the circuit court. The two cases were consolidated in the circuit court, and the trial there was before the court sitting as a jury.

The defendant company defended, first, on the ground that the policies lapsed on account of failure to pay premiums; and, next, on the ground that while the cause was pending in the circuit court a compromise had been entered into between the plaintiff and defendant and that the plaintiff had executed in writing a release. Defendant also undertook to show that the suits were instituted by attorneys without authority from the...