Equitable Life Assur Soc. v. Felton

• Decision Date: 28 May 1934
• Docket Number: No. 4-3475.,4-3475.
• Citation: 71 S.W.2d 1049
• Court: Arkansas Supreme Court
• Parties: EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES v. FELTON.<SMALL><SUP>*</SUP></SMALL>

Page 1049

71 S.W.2d 1049

EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES v. FELTON.^*

No. 4-3475.

Supreme Court of Arkansas.

May 28, 1934.

Appeal from Circuit Court, Lee County; W. D. Davenport, Judge.

Suit by Sarah E. Felton, administratrix of the estate of William F. Felton, against the Equitable Life Assurance Society of the United States. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

D. S. Plummer, of Marianna, and Rose, Hemingway, Cantrell & Loughborough, of Little Rock, for appellant.

Daggett & Daggett, of Marianna, for appellee.

JOHNSON, Chief Justice.

On the threshold of this case we are confronted with the contention, advanced by appellee, that appellant's contentions, as evidenced in the motion for new trial, cannot here be considered for the reason that said motion was filed without the time given by section 1314, Crawford & Moses' Digest, of the laws of Arkansas. Although this contention presents a very serious question, it relates to this case only. Therefore, we pretermit consideration or determination thereof, because the case must be affirmed on its merits.

In 1924 appellant issued and delivered its contract of insurance to one William F. Felton by the terms of which it agreed to pay the sum of $5,000 in the event of death and in addition thereto agreed:

"Total and Permanent Disability:

"(1) Disability benefits before age 60 shall be effective upon receipt of due proof, before default in the payment of premium, that the insured became totally and permanently disabled by bodily injury or disease, after this policy became effective and before its anniversary upon which the insured's age at nearest birthday is 60 years, in which event the Society will grant the following benefits:

"(a) Waive payment of all premiums payable upon this policy falling due after receipt of such proof and during the continuance of such total and permanent disability; and

"(b) Pay to the insured a monthly Disability-Annuity, as stated on the face hereof; the first payment to be payable upon receipt of due proof of such disability and subsequent payments monthly thereafter during the continuance of such total and permanent disability, provided, that if this policy is continued under the endowment conversion option, the Disability-Annuity shall continue only during such total and permanent disability until the maturity of the endowment."

The insured died on March 19, 1933, and the death benefit, as provided in said contract, has been paid. The controversy here arises under the total and permanent disability clauses heretofore quoted.

It is admitted by appellant that William F. Felton, the insured, became totally and permanently disabled, in the purview of the contract of insurance, in May, 1930. Therefore, there is no contention of no liability on this account.

However, it is earnestly contended by appellant that liability should be restricted to the sum of $48.06, same being the amount which accrued after the filing of proof of total and permanent disability, which occurred on March 10, 1933, and the death of the insured.

By invitation of the plaintiff, in the court below, and appellee here, the case was tried upon the theory that the insured became mentally incompetent or insane in May, 1930, upon the occurrence of total and permanent disability, and was therefore excused from giving notice or filing proof of such disability with the insurer during the period of such disability. Much evidence was adduced upon this branch of the case. Even so appellant contended below and contends here that the evidence offered was not sufficient to warrant submission to the jury of the issue of insured's mental condition. The evidence tended to establish the following facts:

That prior to May, 1930, insured was strong and alert in body and of robust health; that he was mentally sound and alert; that suddenly he was beset with vertigo, blindness, dizzy spells, and frequent lapses of consciousness which continued up to his death; that he ignored advice of attending physicians to desist from all labor and on the contrary continued his efforts though resulting in a waste of time and energy; that he assumed an attitude of coolness and indifference towards his family which had not existed prior to May, 1930; that he advised his son that his mind was impaired and directed him to remove and hide the firearms from their accustomed places; that he could not carry on an intelligent conversation, in that he would suddenly leave the subject and jump to another; that he seriously objected to his son submitting his policies of insurance to an attorney for legal advice because he feared that it might destroy his insurance. The attending physician testified, in effect, that during the period from May, 1930, up to the death of the insured that his mind was confused, and when asked:

"Q. Would you say from your association with Mr. Felton, and your treatment and observation of him, that the mental impairment was such that he could not transact the ordinary affairs of life?"

Stated:

"A. I don't believe I could answer that question yes or no, because the question of his judgment and the question of his reason would come into it; he could transact it but he might transact it wrong."

On the evidence thus adduced appellant requested a directed verdict in its behalf, which was refused by the trial court, and thereupon the cause was submitted to the jury under the following instructions. For appellee, request No. 2 as follows:

"If you find from a preponderance of the evidence that during the period between May, 1930, and the date on which the said William F. Felton died, he was, by reason of disease and illness, mentally impaired to the extent that he was incapable of carrying on the ordinary affairs of life; and was incapable mentally of such sustained effort as would enable him to comprehend such affairs as needed his attention, then you are instructed that his failure to give the defendant notice of such disability would not bar the right of the plaintiff to recover in this action."

For appellant, the following requests:

No. 3A: "You are instructed that proof of the inability to perform the ordinary affairs of life does not...