Equitable Life Assur. Soc. v. Barton, 4-4365.

• Decision Date: 13 July 1936
• Docket Number: No. 4-4365.,4-4365.
• Citation: 96 S.W.2d 480
• Parties: EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES v. BARTON.
• Court: Arkansas Supreme Court

Page 480

96 S.W.2d 480

EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES v. BARTON.

No. 4-4365.

Supreme Court of Arkansas.

July 13, 1936.

Rehearing Denied September 28, 1936.

Appeal from Circuit Court, Mississippi County, Osceola District; G. E. Keck Judge.

Action by Price M. Barton against the Equitable Life Assurance Society of the United States. From a judgment for plaintiff, defendant appeals and plaintiff cross-appeals.

Affirmed.

Burch, Minor & McKay and Wils Davis, all of Memphis, Tenn., for appellant.

James G. Coston and J. T. Coston, both of Osceola, for appellee.

JOHNSON, Chief Justice.

To compensate an alleged anticipatory breach of two life insurance contracts each of which contained total and permanent disability clauses, this suit was instituted by appellee, Price M. Barton, against appellant, Equitable Life Assurance Society, in the Mississippi county circuit court; the prayer of the complaint being for $23,500 as damages, reasonable attorney's fees, penalties, and costs. By general denial the allegations of the complaint were put in issue. At the January, 1936, term of said court, a trial to a jury was had, but the trial court instructed the jury that there had been no renunciation or abandonment of the contracts by appellant, and that therefore appellee could not recover damages or the present value of the contracts from which direction appellee prosecutes a cross-appeal to this court; and on the issue of total and permanent disability submitted the question to the jury under instructions not here complained of. The jury returned a verdict finding total and permanent disability upon which a judgment was duly entered for past-due installments, a review of which is sought by direct appeal.

On the cross-appeal but little need be said. We are definitely committed to the rule that alleged errors which do not appear on the face of the record will not be reviewed on cross-appeal unless preserved by motion for a new trial. No such motion was filed. Ætna Life Ins. Co. v. Martin (Ark.) 96 S.W.(2d) 327, June 15, 1936; Stacy v. Edwards, 178 Ark. 911, 12 S.W.(2d) 901; St. Louis Southwestern Ry. Co. v. Alverson, 168 Ark. 662, 271 S.W. 27.

Moreover, the conclusion reached by the trial court in respect to the alleged renunciation or abandonment of the contract by the insurer seems to conform to our views this day expressed in Metropolitan Life Insurance Co. v. McNeil, 96 S.W.(2d) 476.

The paramount contention presented on direct appeal is to the effect that the testimony adduced is insufficient to support the jury's finding of total and permanent disability, and for this reason the trial court erred in refusing to direct a verdict as appellant requested. The determination of this contention necessitates a review of the testimony adduced at some length. The contracts of indemnity which were the basis of this suit contain the following pertinent definition of total and permanent disability: "(A) Disability is total when it prevents the insured from engaging in any occupation or performing any work for compensation of financial value."

The testimony adduced by appellee when viewed in the light most favorable to him, as we are required to do under repeated opinions of this court, was to the effect that in May, 1932, he received several gunshot wounds; two in the chest and two in the hip, one of which passed through the bowels. As a consequence of said wounds, appellee remained in a hospital four months; he was removed from the hospital at that time in an ambulance; he has been forced to remain under the care of physicians up to the time of the trial; he is an uneducated man, and prior to his injuries made his living expenses by farming, the only business he knew; he could prior to his injuries oversee the cultivation on shares of thousands of acres; this necessitated horseback riding for from 10 to 15 hours daily. Subsequent to appellee's injuries, he has been forced to desist share cropping, because he cannot oversee it; he cannot, because of his injuries, ride horseback and cannot walk more than 150 yards at a time; he cannot drive a car as he did prior to his injuries because his leg becomes "numb," and "I just haven't got the use of it," in shifting gears; in such circumstances he is required "to hoist his leg with his hand"; appellee cannot now carry a scuttle of coal or a bucket of water, and is unable to load purchases of merchandise into his car; his body is now unbalanced, due to said injuries, one leg being 1¾ inches shorter than the other. Appellee now spends much of his time in bed; he cannot perform any kind of manual labor. In 1936, appellee was in the field not...