Millerick v. Benefit Ass'n of Railway Employees

• Decision Date: 27 April 1942
• Docket Number: No. 4-6731.,4-6731.
• Citation: 161 S.W.2d 205
• Parties: MILLERICK v. BENEFIT ASS'N OF RAILWAY EMPLOYEES.
• Court: Arkansas Supreme Court

Page 205

161 S.W.2d 205

MILLERICK v. BENEFIT ASS'N OF RAILWAY EMPLOYEES.

No. 4-6731.

Supreme Court of Arkansas.

April 27, 1942.

Appeal from Circuit Court, Desha County; T. G. Parham, Judge.

Action by J. H. Millerick against Benefit Association of Railway Employees on a health and accident policy. Plaintiff died and the action was appealed from a justice of the peace court to the circuit court by defendant and revived in the name of Mrs. Etta Millerick, as executrix of the estate of J. H. Millerick, deceased. From a judgment for defendant, executrix appeals.

Affirmed.

James Merritt, of McGehee, for appellant.

John M. Lofton, Jr., and Owens, Ehrman & McHaney, all of Little Rock, for appellee.

HOLT, Justice.

This cause originated in the justice of the peace court for Bowie township, Desha county, Arkansas, June 2, 1941. In this suit J. H. Millerick sought to recover benefits alleged to be due under the sickness provisions of an insurance policy carried by him with appellee, Benefit Association of Railway Employees. Appellee defended on the ground that the policy had lapsed for failure to pay premiums. July 14, 1941, Mr. Millerick died and October 21, 1941, the action was appealed to the circuit court by appellee and revived in the name of appellant. On this latter date the cause was heard before the circuit court, sitting as a jury, and the issues determined in favor of appellee, Benefit Association. This appeal followed.

The record discloses that on June 3, 1933, J. H. Millerick, the deceased, obtained from appellee a policy of insurance, and delivered to it a pay roll deduction order, directing his employer, The Missouri Pacific Railroad Company, to deduct from his salary each month $3.60, the amount of the premium due upon said insurance policy. The policy provides in part that "The Association hereby insures J. H. Millerick * * * by occupation Locomotive Engineer, from 12 o'clock noon of the above date * * * until 12 o'clock noon * * * on the same date of the month following and for such terms of one calendar month each thereafter as the monthly premium of $3.60 paid by the Insured will continue this policy in force".

The deduction order was deposited with the railroad company in St. Louis, Missouri, and deductions were begun as of June 19, 1933, and continued by the railroad company and remitted to the insurance company, appellee, each month up to and including March, 1939. At this time Mr. Millerick changed his place of work. We quote from his testimony:

"Q. Did you change? A. Yes, I changed place of work.

"Q. Did you have a new time keeper on that other division? A. I don't know. I don't think so, think same time keeper in St. Louis."

The railroad company made no deductions from Mr. Millerick's pay roll for April, 1939, or for any month subsequent thereto, and appellee insurance company received no premium from anyone after March, 1939. During the time from and including April, 1939, through January, 1941, Mr. Millerick was earning and receiving an average of $312 per month from the railroad company.

Appellee, having received no premium payments upon the policy in question after March, 1939, wrote a letter to Mr. Millerick in part as follows: "September 1, 1939. File — 63608old — J. W. Millerick, Dear Brother: For some time past, no deduction has been reported from your earnings by the railroad company by whom you are employed, covering the monthly premiums on your health and accident policy, and it has now lapsed. This may be due to your being transferred or temporarily laid off. A lapsed policy is of no value to anyone and we could not give you claim service if you were disabled. * * * The Association issues policies covering all classes of railroad occupations, which give full coverage at unusually low rates. You cannot afford to work on a railroad without B.A.R.E. health and accident coverage. If you have been laid off, we will gladly reinstate you if a remittance of one month's premium is sent into the Home Office. If you have been transferred, please let us know immediately your present occupation and where employed, and we will place you on our billings and automatically reinstate your policy as soon as deductions are made. May we hear from you in the enclosed self-addressed envelope which does not need a stamp? Fraternally yours, F. B. Ahara, Vice-President".

Mr. Millerick admitted having received this letter either in the fall of 1939 or in the fall of 1940. We quote from his testimony on this point:

"Q. Didn't the company as of the date of September 1, 1939, write you? A. Don't think the date is right, it was long in the fall before I got back that I got this letter. I couldn't tell you the date, I left the letter on the engine. * *...