Locomotive Engineers Mutual Life & Accident Association v. Vandergriff

• Decision Date: 17 February 1936
• Docket Number: 4-4174
• Citation: 91 S.W.2d 271,192 Ark. 244
• Parties: LOCOMOTIVE ENGINEERS MUTUAL LIFE & ACCIDENT ASSOCIATION v. VANDERGRIFF
• Court: Arkansas Supreme Court

91 S.W.2d 271

192 Ark. 244

LOCOMOTIVE ENGINEERS MUTUAL LIFE & ACCIDENT ASSOCIATION v. VANDERGRIFF

4-4174

Supreme Court of Arkansas

February 17, 1936

Appeal from Crawford Circuit Court; J. O. Kincannon, Judge affirmed.

Judgment affirmed.

Horn Weisell, McLaughlin & Lybarger and R. S Wilson, for appellant.

Partain & Agee, for appellee.

BUTLER J., MCHANEY, J.

OPINION

BUTLER, J.

Appellee, George W. Vandergriff, sued the appellant Association to recover under the terms of a policy which insured him in the sum of $ 4,500 against "total and permanent loss of sight in one or both eyes where there is no vision beyond mere light perception." Appellee recovered the amount sued for and this appeal follows.

The first contention made for reversal is that the suit was prematurely brought. This contention is based upon a provision of the by-laws of the Association providing in substance that where proof of permanent loss of sight is made it shall be upon a form furnished by the Association signed by two experienced oculists; that proof of blindness will be held on file at the home office for one year from the date of examination where the eye or eyes have not been removed from their sockets; that no recognition will be made for a claim for impaired eyesight, etc., but for total and permanent blindness only in one or both eyes where there is no vision beyond mere light perception.

Appellee notified the appellant of the impairment of his vision and requested of, and was furnished by, the appellant a regular form upon which to make his proof of disability. The appellee prepared the proof to which was attached the certificate of two qualified oculists which was forwarded and duly received by the appellant. It is now claimed that the proof was insufficient, but this contention was not made at the time of its receipt, or at any time prior to the filing of the suit. On the other hand, the appellant communicated with its local secretary, Mr. J. B. Lemley of Van Buren, advising of the receipt of proof of loss of sight of the appellee, calling attention to the fact that when he made application for disability insurance the applicant stated that he had not had any trouble with his eyes, and advising that the matter had been referred to the appellant's doctor for investigation for the purpose of determining whether appellee had had any trouble with his eyes prior to the date of his application. In this letter, Mr. Lemley was also asked to make an investigation for the purpose of learning whether appellee had had any trouble with his eyes prior to the application. The letter concluded with the following paragraph: "However, the proof plainly shows that this brother is not totally and permanently blind as our laws require, due to the fact that he has 20/200 vision in the left eye. Therefore we are rejecting his claim, and ask that you so advise him."

It is argued by appellant that the letter, of which the above quotation is a part, is not a denial of liability but merely goes to the form of the proof in that it does not show total and permanent blindness and that the purpose of the letter was to call this to the attention of the appellee so that he might, in a year from the filing of his proof, correct this defect if possible and show total and permanent blindness within the meaning of the policy. This contention entirely overlooks the positive statements of the two oculists to the effect that appellee's left eye had a vision of 20/200, the specific cause of which was stated, and that this had caused "a permanent loss of sight in his left eye," as stated by one of the oculists, and, as stated by the other, "which will prove a permanent loss of vision." In justification of its position regarding the sufficiency of the proof, appellant construes the statements made by the oculists as an evasion "as to totality of loss, and no showing of totality was made." We do not so construe the statements of the physicians and perceive no evasion attempted in their answers. Certainly, if appellant was not satisfied with the statements of the physicians, it should have so advised the appellee, but this it did not do. Neither can we agree with the appellant in its claim that its letter was not a denial of liability. It plainly and unmistakably rejected the claim made on the ground that "the proof plainly shows that this brother is not totally and permanently blind as our laws require, due to the fact that he has a 20/200 vision in the left eye." Notwithstanding the statements of the examining physicians to the effect that appellee had suffered a permanent loss of sight in his left eye, appellant arbitrarily determined that a 20/200 vision was not a loss of vision as certified by the physicians, and, for this reason, rejected appellee's claim. It is difficult to perceive how denial of liability could be couched in more explicit and unmistakable terms. It is our opinion that the letter was a denial of liability, and therefore the provision of the by-laws relied on could have no application, for if it is reasonable at all, it is only so in cases where there is no denial of liability and as giving time for further investigation regarding the merits of the claim. By this denial of liability the appellant breached its contract and appellee's cause of action at once arose. Business Men's Accident Ass'n of America v. Cowden, 131 Ark. 419, 199 S.W. 108; Old American Ins. Co. v. Wexman, 160 Ark. 571, 255 S.W. 6; Fire Ass'n of Philadelphia v. Bonds, 171 Ark. 1066, 287 S.W. 587; Mutual Life Insurance Co. v. Marsh, 186 Ark. 861, 56 S.W.2d 433; Sun Life Assurance Co. of Canada v. Coker, 187 Ark. 602, 61 S.W.2d 447; American National Insurance Co. v. Westerfield, 189 Ark. 476, 73 S.W.2d 155.

It is insisted that before appellee could take advantage of a waiver of the by-laws postponing final action on the proof of loss for 12 months, same must have been pleaded in his complaint. There is no merit in this contention. We have not examined the cases cited from foreign jurisdictions, but our own case of American Insurance Co. of N. J. v. Brannan, 184 Ark. 978, 44 S.W.2d 346, cited, does not sustain the contention made.

The necessary effect of the allegation of appellee's complaint was that liability had been denied, the conclusive proof of which was in the hands of the appellant at the time of the institution of the suit, and it could not have been prejudiced by the alleged defect in the pleading. Moreover, there was no objection to evidence offered relating to the proof of loss.

Insufficiency of evidence. The contention made by the appellant that the evidence was not reasonably sufficient to support the verdict and judgment cannot be sustained. The great preponderance of the testimony is to the effect that appellee has only 20/200 normal vision in his left eye. This is explained as a...