Atlas Life Ins. Co. of Tulsa, Okl. v. Bolling

• Decision Date: 03 October 1932
• Docket Number: No. 4-2654.,4-2654.
• Citation: 53 S.W.2d 1
• Parties: ATLAS LIFE INS. CO. OF TULSA, OKL., v. BOLLING.
• Court: Arkansas Supreme Court

53 S.W.2d 1

ATLAS LIFE INS. CO. OF TULSA, OKL., v. BOLLING.

No. 4-2654.

Supreme Court of Arkansas.

October 3, 1932.

Appeal from Circuit Court, Ouachita County, Second Division; W. A. Speer, Judge.

Suit by John A. Bolling against the Atlas Life Insurance Company of Tulsa, Okl. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Silas W. Rogers, of El Dorado, and C. C. Brewer, of Little Rock, for appellant.

H. G. Wade and Gaughan, Sifford, Godwin & Gaughan, all of Camden, for appellee.

BUTLER, J.

This suit was instituted by the appellee to recover benefits for total and permanent disability under the terms of a policy of insurance issued to him by the appellant company. In the complaint appellee alleged in substance that the policy sued on had been at all times since the date of issuance and delivery to him in full force and effect, and that, while it was in force and effect, he became totally and permanently disabled so as to prevent him from engaging in any remunerative occupation or performing any work, that the appellant company had denied liability, and that under the terms of the policy he was due the sum of $25 per month from the date of his disability. He prayed judgment for that amount and 12 per cent. penalty and reasonable attorney's fee.

The appellant answered, denying the material allegations of the complaint, and specifically denying that the appellee had at all times done and performed all things required of him to keep his policy in full force and effect, and that, since the date of the issuance of the policy or at the time of the filing of the answer, it was in full force and effect. The appellant subsequently filed an amendment to the answer in which it alleged that the policy was obtained through fraud on the part of the appellee, in that he had made false statements in his application on June 20, 1930, wherein he stated that he was in good health on that date; that this statement was not true, as the alleged injury to the appellee was sustained on June 18, 1930, before the date of the application for, and issuance of, the policy.

On these pleadings and the testimony adduced the case was submitted to the jury, which returned a verdict for the appellee for the sums sued for. Thereupon the court entered judgment for the sums found by the jury and for a 12 per cent. penalty and attorney's fee. From that judgment is this appeal.

One of the contentions made by the appellant is that the undisputed testimony shows that the injury out of which appellee's disability grew occurred on a day in June before the application was made for insurance and before the policy was issued and delivered, and that therefore, under the terms of the policy, no recovery could be had, and, if the evidence as to the date of the injury was not wholly uncontradicted, the great preponderance of the testimony was to the effect that the injury occurred before the date of the application, and that appellant was entitled to have that issue submitted to the jury under its requested instruction No. 2, which in effect told the jury that, although the appellee (plaintiff) was wholly and permanently disabled within the meaning of the policy, yet, if the cause for said total and permanent disability resulted from an injury received prior to his application, there could be no recovery.

We have examined the contract of insurance with care, and are of the opinion that the construction placed upon it by appellant is not warranted by its terms. That part of the clause of the policy on which this suit is predicated provides as follows:

"After one full annual premium shall have been paid upon this policy, and before default in the payment of any subsequent premium, if the insured shall furnish the company with due proof that he has since such payment * * * become wholly disabled by bodily injury or disease, not occasioned by military or naval service, * * * so that he is, and presumably will be, thereby permanently, continuously and wholly prevented from engaging in any occupation for remuneration or profit, or performing any work, and that such disability has then existed continuously for not less than ninety days, * * * the company will pay to the insured * * * a monthly income of $10 for each one thousand dollars face amount of insurance. * * *"

The above clause does not provide for exemption from liability where the cause...