Metropolitan Life Insurance Company v. Pope

• Court: Arkansas Supreme Court
• Writing for the Court: MEHAFFY, J.
• Citation: Metropolitan Life Insurance Company v. Pope, 193 Ark. 139, 97 S.W.2d 915 (Ark. 1936)
• Decision Date: 09 November 1936
• Docket Number: 4-4420
• Parties: METROPOLITAN LIFE INSURANCE COMPANY v. POPE

97 S.W.2d 915

193 Ark. 139

METROPOLITAN LIFE INSURANCE COMPANY v. POPE

4-4420

Supreme Court of Arkansas

November 9, 1936

Appeal from Marion Circuit Court; Jack Holt, Judge; affirmed and reversed.

Shouse & Walker, for appellant.

Jewell Black and Cotton & Murray, for appellee.

OPINION

MEHAFFY, J.

The appellant issued to the Commerce Mining & Royalty Company its group policy insuring the employees, and issued to the individual employees certificates, and delivered them to the employer. On September 26, 1928, Van A. Pope became an employee of the mining company, and would have been entitled to a certificate of insurance on March 26, 1929. The group policy, however, provided that in no case shall an employee be insured under said policy until he has completed an aggregate period of service of six months. On March 29, 1929 six months after Pope was employed by the mining company, he fell in the mines, became sick, and was never thereafter able to work. He died on April 1, 1930.

The policy provided that if an employee insured under the plan became wholly and permanently disabled while in the employment of the mining company, before reaching the age of 60 years, by accidental injury or disease and is thereby permanently, continuously, and wholly prevented from pursuing any and all gainful occupations, he would be regarded as a claimant by the Metropolitan Life Insurance Company.

The policy issued provided for the payment of $ 500 on the death of the insured to his beneficiary, Nellie Pope. It also provided that if an employee should become wholly and permanently disabled while in the employ of the mining company, that the insurance company, six months after the receipt of proof of such disablement, will begin making payments of the amount of the insurance under one of the plans set forth.

The appellee, Nellie Pope, who was beneficiary under the policy on December 3, 1932, filed suit in the Marion circuit court for $ 500 for the death of Van A. Pope, and $ 540 for installments under the disability clause, with interest from insured's death and attorney's fee and penalty. The case was submitted to the jury and it returned a verdict in favor of the appellee for $ 1,403.80. To reverse this judgment this appeal is prosecuted.

Nellie Pope, the appellee, testified and introduced the certificate. She testified in substance that she was the wife of Van A Pope; they had five children; that her husband worked for the Commerce Mining & Royalty Company in Oklahoma and carried insurance with the Metropolitan Life Insurance Company; that her husband worked for this mining company for three years, and that her son, Raymond, was also working for the same company; that her husband took sick on the 28th or 29th of March and they brought him to Bruno, Arkansas, on April 3rd; he never worked any more and was not able to be out of the house after that, and died April 1, 1930. The company sent Dr. Weiss to examine him, and appellee made demand on the insurance company for the amount due, and they refused to pay it. They said their doctor reported that he was all right; her husband quit work about the 28th or 29th of March. The mining company took the payment for his insurance out of his checks.

Here the following letter was introduced:

"Miami, Okla.,

"July 30th, 1929.

"Mr. Van A. Pope,

"Bruno, Arkansas.

"Dear Sir:

"We are inclosing herewith a form which it will be necessary for you to have your doctor fill out in order to get your claim for total disability under way. I would suggest that you take it to Dr. Gladden at Western Grove or Dr. Moore at Everton and have them go over you pretty carefully and answer the questions in a definite way so that the insurance company can determine the condition of your health. There will probably also be a medical examiner for the insurance company get in touch with you and examine you also.

"This policy will not pay you very much of a benefit. You had been working for this company only long enough to receive a policy or just a little over six months. The amount of your policy is $ 500. You will not begin to receive these payments until six months after proof of your claim has been established and then you can collect $ 9 per month for 60 months or $ 107 per year for five years. You can also get quarterly payments or on a semi-annual plan at the same rate.

"Suggest that you answer the questions in the first part of the blank. You can have the doctor help you with these questions and sign your statement in ink using your full name. We will supply the employer's statement when you send the blank back.

"Trusting you will give this your prompt attention and that you will call on us for any other information which we can furnish you, we are,

"Yours truly,

"Commerce Mining and Royalty Company,

"By Floyd Newton.

"Use inclosed stamped envelope for return."

Appellee, continuing her testimony, said that she did not know who made the report, and did not know anything about the payment of premiums.

Raymond Pope testified that he is the son of Nellie Pope and Van A. Pope and now lives in Kansas; he and his father worked for the Commerce Mining & Royalty Company in 1929; his father became sick the last of March, 1929, and came back to Arkansas where he remained, not able to leave his room, until his death. He visited his father after he was carried home, and knows that he was confined to his room and not able to work. The last work he did was the last of March. He testified that it was not in February that his father got sick, but the last of March.

The appellant introduced the group policy and the testimony of Mr. Newton, who testified that during the years of 1928 and 1929 he was employed by the Commerce Mining & Royalty Company as assistant auditor, and looked after the employment records, having charge of the group insurance records; had charge of the records of Van A. Pope during the time he worked for the Commerce Mining & Royalty Company, and that he was familiar with such records. Mr. Pope had worked for the company before, but so far as the certificate involved is concerned, his employment began September 26, 1928, and his policy was canceled on July 29, 1929.

The superintendent of the mining company during the time Van A. Pope, was employed by it, was H. E. Ackley, who is now dead. He was familiar with Mr. Pope's employment record. It was the practice of the mining company to have the policies available for delivery after the employee had been employed for six months. This employee apparently laid off the last two weeks of the fifth month, on account of illness, resuming his employment on the sixth month for two weeks, when he again became ill, and after which he worked no more. Apparently the superintendent, believing the man had worked six months, through error delivered the policy prematurely. The premium was paid on the policy by the mining company, but it would be difficult, if not impossible, to determine the amount. The premiums on all the policies were paid when due; does not know the date of Mr. Pope's death, but he severed his connection with the mining company approximately July 29, 1929. He was not carried on the payroll as being employed by the mining company subsequent to the second week of March.

It is contended first by the appellant that Van A. Pope was never an insurable subject under the terms of the policy, and it is earnestly insisted that Van A. Pope had not worked for the company six months. The testimony of Mrs. Pope and Raymond Pope show that Van A. Pope had worked for six months, and the policy was delivered to him by the superintendent of the mining company, and there is no evidence of fraud or collusion, but the preponderance of the evidence shows that he had worked six months before the policy was delivered to him.

Appellant calls attention to the case of American National Insurance Company v. Hamilton, 192 Ark. 765, 94 S.W.2d 710, in which this court said: "We cannot make contracts for parties, but must enforce them as they are."

It is true this court cannot make contracts for the parties, but it is the well settled rule of this court that when a question is submitted to the jury on substantial evidence, that its verdict is binding on this court on that question. This court cannot pass on the credibility of the witnesses nor the weight to be given to their testimony. These are matters for the jury. Not only did Mrs. Pope and Raymond Pope testify that Van A. Pope had worked six months, but this testimony is supported by the action of the...