Illinois Bankers' Life Ass'n v. Byassee

• Citation: 275 S.W. 519
• Decision Date: 29 June 1925
• Docket Number: (No. 76.)
• Parties: ILLINOIS BANKERS' LIFE ASS'N v. BYASSEE.
• Court: Supreme Court of Arkansas

Page 519

275 S.W. 519

ILLINOIS BANKERS' LIFE ASS'N v. BYASSEE.

(No. 76.)

Supreme Court of Arkansas.

June 29, 1925.

Rehearing Denied October 5, 1925.

Appeal from Circuit Court, Arkansas County; Geo. W. Clark, Judge.

Action by Lola Byassee, administratrix of the estate of Mary A. Nichols, deceased, against the Illinois Bankers' Life Association. Judgment for plaintiff, and defendant appeals. Reversed, and cause dismissed.

T. E. Helm, of Little Rock, for appellant.

Joseph Morrison, of Stuttgart, for appellee.

McCULLOCH, C. J.

This is an action on an insurance policy and was instituted by appellee, as administratrix of the estate of Mary A. Nichols, deceased. Appellant issued the policy in controversy to Mrs. Nichols on August 13, 1915, and it contained stipulations for the payment of premiums or assessments, with a further provision that for failure to pay premiums within the stipulated time all rights under the policy should be forfeited. The policy provided that upon the death of Mrs. Nichols the sum of $2,000 would be paid to her husband, and that one-half of the policy should be paid to the assured herself on due proof that she had become "permanently and totally disabled as the result of accident or disease." The policy referred to the by-laws of appellant association, and in express terms made them a part of the contract, and there was a provision in the by-laws requiring proof of loss, either on account of death or disability, and that such notice should be given within 90 days "after the death of said member or policy holder, or the happening of total and permanent disability," and stipulating that any claim on account of death or disability "shall be forfeited by failure to furnish proof within the time and in the manner above prescribed."

Mrs. Nichols died on August 26, 1921, and the present action was instituted on December 22, 1923, to recover one-half of the amount of the policy for alleged total disability of the assured. It is undisputed that the premium, or assessment, due on the policy in January, 1921, was not paid, and that the policy lapsed. It was alleged, however, that the total disability of the assured occurred prior to the time that the policy lapsed, and that the company is liable, notwithstanding the subsequent lapsing of the policy.

Appellant defends on the ground that proof of loss was not made within the time prescribed by the by-laws, and that there is no liability for disability which occurred after the time that the policy lapsed. The court submitted the case to the jury, and there was a verdict in favor of appellee.

The evidence adduced by appellee was sufficient to establish the fact that Mrs. Nichols sustained total physical disability on account of disease in October, 1920, and that she continued in that condition until she died on August 26, 1921. The testimony is to the effect that she became ill from tuberculosis, and that she was continuously confined to her bed, growing gradually worse, but that she was hopeful of recovery up to the time of her death. The proof tends to show that the tuberculosis developed following a spell of influenza. After the policy lapsed on account of failure to pay the January, 1921, assessment, there was no communication between the company on the one part and the assured or any one else with reference to the policy until there was a letter written by a friend of the family on July 5, 1923, in which appellant was informed of the death of Mrs. Nichols on August 26, 1921, and that she had become totally and...