American National Insurance Company v. Mooney

• Decision Date: 23 February 1914
• Parties: AMERICAN NATIONAL INSURANCE COMPANY v. MOONEY
• Court: Arkansas Supreme Court

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

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 plaintiff.

It was conceded in the trial that premiums were not paid on either of the policies after a certain date; but the plaintiff undertook to show that at that time sick benefits were due to Weatherall in an amount sufficient to carry the policies beyond the date of his death. That was the only issue in the case concerning the question of forfeiture of the policy. Plaintiff adduced testimony tending to show that Weatherall was confined to his room by sickness for several weeks, sufficient to entitle him to sick benefits in the sum of $ 20, which was more than sufficient to pay the premiums on the policies beyond the death of Weatherall. The company denied liability for sick benefits on the ground that Weatherall was not confined to his room a full week and made that contention at the trial. If, however, as plaintiff contended, a sum of money was due, sufficient to pay the premiums and keep the policies alive up to the death of Weatherall, then there was no forfeiture of the policies, for the reason that the amount due should have been applied by the company in satisfaction of the premiums, so as to keep the policies alive. Union Central Life Ins. Co. v. Caldwell, 68 Ark. 505, 58 S.W. 355.

After the plaintiff rested her case, defendant put on a witness and attempted to show that no sick benefits were earned. During the examination of that witness, who was the general superintendent of defendant company in this State, it developed, from his testimony, that he had procured from plaintiff, who, it appears, was not present at the trial, a statement, in writing, to the effect that she had not authorized the attorneys to institute the actions and that she repudiated the same and authorized a dismissal, whereupon the defendant's counsel asked permission to make a motion that the cases be dismissed. The court did not expressly rule on the motion to dismiss, but proceeded to render judgment in favor of the plaintiff for the amount of the death benefits under the policies. Counsel then asked permission to introduce further proof, and saved exceptions. It is insisted now that the bill of exceptions shows that the court refused to permit counsel to introduce witnesses who were in waiting for the purpose of making out the defense.

We do not think that the record sustains counsel in this contention. The record recites that, upon the production of the sworn statement of plaintiff, counsel for defendant arose and stated to the court that he would like "to make a motion here that the case be dismissed." The court asked the witness several questions and then proceeded to announce his finding in favor of the plaintiff. Counsel then said "Your Honor, I haven't finished my case. I desire to introduce the rest of my proof, so that I can perfect the record. I desire to introduce a release in full from Alice Mooney and an assignment. I desire that they be placed in the record, Your Honor." (Court:) "You can give...