American United Life Insurance Co. v. Goodman

• Decision Date: 06 January 1941
• Docket Number: 4-6116
• Citation: 146 S.W.2d 907,201 Ark. 634
• Parties: AMERICAN UNITED LIFE INSURANCE COMPANY v. GOODMAN, GUARDIAN
• Court: Arkansas Supreme Court

146 S.W.2d 907

201 Ark. 634

AMERICAN UNITED LIFE INSURANCE COMPANY v. GOODMAN, GUARDIAN

4-6116

Supreme Court of Arkansas

January 6, 1941

Appeal from Lee Circuit Court; E. M. Pipkin, Judge; affirmed.

Judgment affirmed.

Daggett & Daggett, for appellant.

Mann & McCulloch and Burke & Burke, for appellee.

OPINION

HOLT, J.

March 2, 1923, American Central Life Insurance Company issued to Elizabeth Taylor Sellers two policies of life insurance identical in terms for the principal sum of $ 2,500 under each policy. Appellant, American United Life Insurance Company, is the successor in interest of the original insurer.

These policies contained a provision by which, for the consideration of $ 7.43 included in the annual premium of $ 126.48, appellant agreed to pay disability benefits of $ 25 per month to the insured in the event of permanent and total disability as provided in the policy.

September 2, 1938, appellee filed suit in the Lee circuit court on each of these policies, seeking to recover on behalf of her ward Elizabeth Taylor Sellers, under the total and permanent disability clause in each of the policies. The sum of $ 2,348.18, together with 12 per cent. damages and attorneys' fees, was sought in each case.

September 19, 1938, each of these causes was removed to the district court of the United States. Upon proper motions, they were remanded to the state court.

October 9, 1939, the trial court consolidated the two causes of action for the purpose of trial.

December 27, 1939, a petition for the removal of the consolidated causes to the district court of the United States was filed. The grounds being (1) diversity of citizenship; and (2) amount in controversy being in excess of $ 3,000: to-wit $ 4,696.36. January 3, 1940, this petition for removal was denied by the court.

January 3, 1940, the consolidated causes proceeded to trial. There was a verdict for the plaintiff in each case in the sum of $ 2,102.68. In addition to the verdict, the jury returned into open court answers to two interrogatories submitted by the defendant, as follows:

"Interrogatory No. 1. Did Mrs. Sellers, in January, 1932, become as the result of disease, totally, permanently and incurably disabled; and has she so continued to be to the date of the filing of the complaint herein, to such an extent that she was from said date and continuously during the interim to September 2, 1938, thereby prevented from performing any work for compensation or profit or from following any gainful occupation as defined in the instructions?

"Answer Yes.

"Interrogatory No. 2. Was Mrs. Sellers, during the interim between the period beginning January, 1932, and ending March 2, 1935, continuously mentally incompetent and deficient to such an extent as rendered her mentally incapable of comprehending and attending to such of her personal business affairs as she would have otherwise attended, as defined in the instructions?

"Answer: Yes."

Judgment was accordingly entered by the court in each case, together with 12 per cent. damages thereon, and an attorneys' fee of $ 250 to be taxed as costs. Thereafter appellant filed motion for a new trial, which was overruled, and this appeal followed.

Appellant assigns here four alleged errors as follows:

"1. The evidence adduced is insufficient to support the finding of the jury that subsequent to January, 1932, Mrs. Sellers was continuously mentally incompetent and deficient to such an extent as rendered her mentally incapable of comprehending and attending to such of her personal business affairs as she would have otherwise attended, so as to excuse her failure to give notice and make proof of the alleged disability, as provided in the policies sued upon. Therefore, the court erred in refusing to peremptorily instruct a verdict for defendant; and erred in refusing to give to the jury defendant's requested instruction No. 2.

"2. Total and permanent disability, as defined in the policies, was not proven. Therefore, the court erred in refusing to give to the jury defendant's requested instruction No. 1.

"3. The court erred in modifying defendant's requested instruction No. 7.

"4. The court erred in denying defendant's petition for removal to the United States District Court filed December 27, 1939."

We proceed first to discuss appellant's assignment No. 4. We think no error was committed by the trial court in denying appellant's petition for removal filed December 27, 1939, following consolidation of the two causes. Section 1289 of Pope's Digest applies here. That section is as follows:

"When causes of action of a like nature or relative to the same question are pending before any of the circuit or chancery courts of this state, the court may make such orders and rules concerning the proceedings herein as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice and may consolidate said causes when it appears reasonable so to do. Act May 11, 1905, p. 798."

It must be conceded that the two causes, which were consolidated for trial in the instant case, are "of a like nature or relative to the same question." The two contracts of insurance were identical in terms; the same parties were involved. Throughout the pleadings and trial, the identity of the separate causes based upon the two policies of insurance was maintained. The complaints, the answers, verdicts, judgments, etc., were separate. Clearly, we think the court properly consolidated the two causes for trial to avoid unnecessary costs and delay and no abuse of discretion is shown. The effect of consolidation in the instant case was to make the two consolidated suits one action on two causes of action and identity of the separate causes of action was maintained throughout the trial.

In St. Louis-San Francisco Ry. Co. v. Oxford, 174 Ark. 966, 298 S.W. 207, in considering the consolidation of four separate suits for trial, this court said: "The consolidation of the causes for the purpose of trial only did not have the effect of merging the separate causes of action into a single cause of action. The identity of the separate causes of action was maintained throughout the trial."

This identical question seems to have been definitely determined against appellant's contention in New York Life Ins. Co. v. Farrell, 187 Ark. 984, 63 S.W.2d 520. There it was said: "Appellant's first contention is that the court erred in overruling its petition for removal to the federal court. There were two separate suits, each one for $ 3,000. The court, without the suggestion of either party, but on its own motion, for the purpose of trial only, consolidated the two cases. That meant nothing more than the taking of evidence in the two cases at the same time. There was no consolidation for any other purpose, and there was a separate verdict, and separate judgment in each case." After considering several cases cited by appellant, this additional language appears in the opinion: "There is nothing in any of the cases relied upon by appellant that would justify or authorize a removal to the Federal Court."

We now pass to appellant's assignment No. 2 on the question of total and permanent disability.

The record reflects that at the time of the issuance of the policies in question, Mrs. Sellers was a saleslady, she followed this occupation until 1928 when she engaged in business for herself. In 1932 she became so afflicted with arthritis, disease of the gall bladder and other ailments that she was forced to give up entirely the business in which she was engaged and on account of her afflictions she has been confined almost continuously to her home up to the time of trial.

That part of the insurance contract pertinent here is as follows:

"If, while no premium is in default, the company shall, before the anniversary of the policy on which the insured's age at nearest birthday is sixty years, receive due proof of the disability of the insured, as hereinafter defined, provided such disability has at the time of the receipt of such proof existed for not less than sixty days, the company will waive the payment of each premium as it may thereafter become payable, and will pay to the insured a monthly income of one per cent. of the face value of the policy as shown on the first page hereof, the first payment to be made six months after receipt of proof of disability and subsequent payments on the tenth day of each succeeding month during the continuance of such disability or until the face of the policy becomes payable. The premiums so waived and the disability income so paid shall not be deducted from the amount of the insurance, and the loan and cash values shall increase from year to year as though the premiums were being paid in cash.

"Disability of the insured within the meaning of this contract shall exist if the insured, as a result of accident or disease, shall have become totally, permanently, and incurably disabled to such an extent that he is thereby prevented and will be presumably permanently and continuously thereby prevented from performing any work for compensation or profit or from following any gainful occupation."

No proof of any claim for disability benefits under the policies was made to appellant company by Mrs. Sellers until in 1938.

A number of witnesses on behalf of appellee, including Mrs. Sellers' daughter, Mrs. Goodman, Dr. H. D. Bogart, her family physician for 20 years, Bessie Harrington, Elizabeth Harrington, Virginia Sutton, and Mary Spaine, gave testimony which tended strongly to show that Mrs. Sellers was totally and permanently disabled, within the meaning of that provision of the policy quoted above, from January, 1932, until the time of the trial.

We think it would...