Maryland Casualty Company v. Chew

• Decision Date: 15 November 1909
• Citation: 122 S.W. 642,92 Ark. 276
• Parties: MARYLAND CASUALTY COMPANY v. CHEW
• Court: Arkansas Supreme Court

122 S.W. 642

92 Ark. 276

MARYLAND CASUALTY COMPANY v. CHEW

Supreme Court of Arkansas

November 15, 1909

Appeal from Phillips Circuit Court; Hance N. Hutton, Judge reversed.

Reverse and remand for a new trial.

M. L Stephenson, for appellant.

1. The statement of warranties was a part of the contract, and appellee was bound by it. 29 Ind. 568; 33 N.E. 106; 58 Ark 528; 65 Ark. 295; 1 May on Ins. 335; 49 S.W. 153; 53 N.Y. 603; 19 L. R. A. (N. S.) 798. Misrepresentation by the assured as to his occupation avoids the policy. 62 N.W. 1057; 65 Ark. 295.

2. It was error to permit the appellee to read as evidence to the jury the deposition of Dr. Smythe over the objection of appellant, the same having been taken on the part of appellant after notice given, and not offered by appellant; and the fact that it was taken on interrogatories to which appellee appended cross-interrogatories did not authorize its admission over appellant's objection. 15 Ark. 351; 85 Ark. 390. Its introduction was prejudicial. 69 Ark. 648; 77 Ark. 431; 148 U.S. 673; 119 U.S. 103; 17 Wall. 630; 5 Wall. 795; 110 U.S. 47.

3. Appellant should have been permitted to question the appellee as to what instructions, if any, were given him by the surgeon. It was material for the purpose of showing whether or not he had taken proper care of himself to obtain relief from the disability, which was a question for the jury. It was his duty in this respect to obey reasonable instructions of the physician. 46 Ark. 206; 78 N.W. 227.

4. The policy of insurance is the contract sued upon, and under its terms appellee must recover, if at all. This policy covers both partial and total disability, and the second instruction is manifestly wrong. 1 Cyc. 269; 3 N.W. 237; 64 N.W. 1039, 1041; 43 Ill.App. 148; 138 Pa. 595; 13 Ind.App. 539; 65 Ark. 295; 17 S.E. 982; 74 N.Y. 23; 49 U.S. (8 How.) 28. That part of the instruction authorizing a verdict if he was unable to sample cotton was in effect a peremptory instruction to the jury to disregard the evidence offered by appellant of disinterested, unimpeached witnesses. 84 Ark. 57. It practically instructed them to disregard the evidence and the terms of the contract, and allows a total disability recovery for a partial disability. 1 L. R. A. 700; 33 N.E. 105; 149 Mass. 457; 138 F. 629; 65 Ark. 299.

5. In view of appellee's own admissions, and of uncontradicted testimony of witnesses that he was engaged in another occupation besides that of cotton factor at the time the policy was issued, appellant's request for a peremptory instruction in its favor should have been granted. 67 Ark. 514; 117 S.W. 788; 138 F. 629, 637; 65 Ark. 295, 300; 56 Ark. 53, 55; 19 L. R. A. (N. S.) 798, 802.

R. W. Nicholls and Moore & Vineyard, for appellee.

1. The question as to whether or not there was a breach of warranty is settled by the verdict of the jury under the evidence and proper instructions.

2. If it be conceded that the deposition of Dr. Smythe was improperly admitted, no prejudice resulted, the verdict being amply supported by other evidence. 63 Ark. 134, 137; 77 Ark. 431; Id. 453; 73 Ark. 407; 74 Ark. 417; 76 Ark. 276.

3. The court properly refused to permit appellant to question appellee as to the physician's instructions. Appellant had taken Dr. Smythe's deposition, and by that deposition could have shown all the facts.

4. The court would not have been warranted in directing a verdict for appellant unless there had been a total want of testimony on the part of the appellee.

The test is not so much whether the assured had in fact abandoned the occupation stated in the application and policy, but whether or not at the time of the injury he was in fact engaged in another occupation, not merely incidental, but as a business, of a more hazardous classification. 138 F. 635.

OPINION

BATTLE, J.

Frank H. Chew brought an action against Maryland Casualty Company. Complaining, he alleges in his complaint substantially as follows:

On the 29th day of May, 1906, the defendant, in consideration of $ 25 received by it, did issue and deliver to him a certain policy of insurance, and thereby insured him in the principal sum of $ 5,000, and for a weekly indemnity of $ 25, for a period of twelve months from May 28, 1906, against bodily injuries not intentionally self-inflicted, sustained by the assured while sane and effected directly and independently of all other causes through external, violent and accidental means.

Among other provisions in the policy is the following:

"If such injuries shall not result in any of the disabilities mentioned in section 1, and shall immediately, continuously and wholly disable the assured from performing any and every kind of duty pertaining to his occupation, the company will pay him for the period of such total disability the weekly indemnity above specified, but to an amount not exceeding the principal sum."

On the 8th day of April, 1907, while the policy was in full force and effect, plaintiff, Chew, was injured by the accidental discharge of a pistol, the bullet entering his right breast, and causing total, complete and permanent paralysis of his right arm, thereby immediately, continuously and wholly disabling him from performing any and every kind of duty pertaining to his occupation. He alleged that he was entitled to recover $ 650 on the policy for indemnity against loss on account of the accident; and asked for judgment for that amount.

The defendant, the Maryland Casualty Company, denied the foregoing allegations. It stated the facts to be substantially as follows: On the 29th of May, 1906, plaintiff made an application to it for a policy of insurance, making certain warranties. In consideration of the sum of $ 25 and of the application and warranties, it issued the policy sued on. He represented himself to be engaged in the occupation of a cotton factor, but at the time he made this application and these warranties he was not so engaged, but in another and additional and more hazardous occupation, and by reason thereof the policy is void, and was of no force and effect on the 8th day of April, 1907, when the alleged accident occurred.

One of the provisions of the policy is as follows: "If the assured is injured fatally or otherwise in any occupation classified by this company as more dangerous than that stated in the schedule of warranties indorsed hereon, the company's liability shall be only for such proportion of the principal sum or other indemnity provided for herein as the premium paid by him will purchase at the rates fixed by the company for such increased hazard."

At the time of and prior to the accident, plaintiff was engaged in the occupation of "supervising farmer," in addition to that of cotton factor, and as a separate business, which is classified by the defendant as more hazardous than that of cotton factor, and under the policy he is not entitled to the indemnity he claims as cotton factor, but as before stated.

Plaintiff, Chew, did not use due diligence to secure the recovery of his arm.

In the trial of the issues in the case the policy sued on was adduced and read as evidence. It contained the provisions set out in the pleadings and the following in addition to others:

"No. 2. Or, if such injuries shall not result in any of the disabilities mentioned in section 1 and shall immediately, continuously and wholly disable and prevent the assured from performing any and every kind of duty pertaining to his occupation, the company will pay him for the period of such total disability the weekly indemnity above specified, but to an amount not exceeding the principal sum; or, if such injuries shall not wholly disable the assured as above, but shall immediately, continuously and wholly disable and prevent him from performing one or more important daily duties pertaining to his occupation, the company will pay one-half the weekly indemnity above specified for the period of such partial disability, not exceeding twenty-six consecutive weeks from the date of injury; or, if such partial disability shall follow a period of total disability, the indemnity provided for partial disability shall be paid, but not for more than twenty-six weeks; nor shall the company be liable under the provisions of sections 1 and 2 for a sum greater than the principal sum."

Contained in the policy is a schedule of warranties, which in part are as follows: "I am F. H. Chew, of Helena, Ark., whose business is that of cotton factor. The duties of my occupation are fully described as follows: office work; classified as select."

The deposition of Dr. F. D. Smythe, which was taken by the defendant to be used as evidence in its behalf in the trial of this cause, was read as evidence by plaintiff in the trial, over the objection of the defendant.

The following extracts were parts of the deposition:

"The patient's general condition was bad when he reached the hospital, and the idea of operating at once was not entertained, owing to the location of the injury, also its recent occurrence. I felt that life would be jeopardized by operating at that time, and so advised him. He left the hospital for his home, and I informed him that the only chance for restoration of function of the arm was by a performance of the operation for deuteropathy or nerve suffering; that the operation in this case was not without risk, and at the same time I could not assure him of success attending my efforts, but, as it offered him the only hope of regaining the use of his arm, I advised him to take the chance. Some months later he called to see me, his arm being in about the same condition except the atrophy advanced somewhat. He had slight use of some of his fingers and thumb, but not sufficient to be of any possible...