Mutual Ben. Health & Accident Ass'n v. Bird, 209.

• Decision Date: 21 March 1932
• Docket Number: No. 209.,209.
• Parties: MUTUAL BEN. HEALTH & ACCIDENT ASS'N v. BIRD.
• Court: Arkansas Supreme Court

Page 812

47 S.W.2d 812

MUTUAL BEN. HEALTH & ACCIDENT ASS'N v. BIRD.

No. 209.

Supreme Court of Arkansas.

March 21, 1932.

Appeal from Circuit Court, Scott County; J. Sam Wood, Judge.

Suit by Omer S. Bird against Mutual Benefit Health & Accident Association. Judgment for plaintiff, and defendant appeals.

Affirmed.

Malcolm W. Gannaway, of Little Rock, for appellant.

W. A. Bates, of Waldron, and Sam T. Poe, Tom Poe and Donald Poe, all of Little Rock, for appellee.

MEHAFFY, J.

This suit was originally filed by appellee against appellant for $175, with interest, penalty, and attorney's fees.

Appellee filed an amendment to his complaint in which he asked judgment for $2,675, together with 12 per cent. penalty and $400 attorney's fees. He alleged that the appellant, in consideration of the payment to it by the appellee, of an annual premium of $40, delivered to appellee its policy of accident insurance, attaching a copy of the policy to his complaint. He further alleged that on January 5, while said policy was in full force and effect, appellee was accidentally injured in an automobile accident, wherein two cars ran together, thereby inflicting injuries to his head, hips, back, chest, and forehead, and breaking and crushing ribs, and causing internal injuries, which have totally and permanently injured him; that as a result of the injuries he has been totally and permanently injured from January 5, 1931, and will continue so.

He further alleged a performance of all the conditions of said policy on his part, and that he gave appellant due notice and proof of his injuries, and made demand for payment, which appellant refused to pay, and asked judgment against the appellant for the amount alleged to be due under the policy.

Appellant filed answer in which it denied all the material allegations in the complaint and alleged that at the time of the accident there was no policy of accident insurance in force.

One of the clauses in the policy reads as follows: "If such injuries as described in the Insuring Clause, shall wholly and continuously disable the insured for one day or more, and so long as the insured lives and suffers said total loss of time, the Association will pay a monthly indemnity at the rate of eighty ($80.00) Dollars."

The appellee testified that he was 58 years old, and that his occupation was and had been for some time that of running and working in a filling station at Waldron; prior to that time he had been a blacksmith; that his policy was issued to him in 1924, and was in force at the time of his accident and injury. All premiums had been paid since the policy was delivered to him. He paid $12 when the policy was delivered, and $10 every quarter thereafter; early in 1931 he was injured in an automobile accident at Waldron; that he was confined to his home on account of the injuries sustained for about six weeks, and was treated by Dr. Duncan; that since the accident he had been unable to fix or repair heavy casings or tires, or to grease cars; that before the accident he could do this work; when he lifts anything heavy or pulls with his right arm it hurts his side; two or three ribs and his breastbone were broken on the right side; he spit up blood for a week, and does not sleep or lie on his right side, as he could before the injury.

Some of the ribs were caved in, and this was shown to the jury. A copy of the policy was introduced in evidence. Dr. Duncan had treated him since January 26, 1931.

Mr. Harris and a boy named Chandler, appellee, and his son worked at the filling station; appellee's son was the proprietor; Mr. Harris does the heavy work. Immediately after the injury he told his son to notify the company.

Mack Bird, son of appellee, testified that he was the cashier of the Bank of Waldron and had been paying his father's premiums for seven or eight years; that on December 30, 1930, he mailed a check for $10 to appellant; the check was mailed in a long envelope, with the Bank of Waldron printed thereon; that it was addressed to the appellant at Omaha, Neb. It was drawn on the bank at which witness worked, and had been paid and canceled. His father was injured on January 5.

He testified that in September or October 1930, he paid the premium to appellant's collector at Waldron; he sent a letter to the company with the check on December 30, 1930. He did not have a copy of the letter. He testified that he did not mail the check in the envelope attached as an exhibit to the deposition of Grace Welch, but that he mailed a notice of the accident in an envelope similar to the one attached to her deposition. He mailed the notice of the accident the day after his father was injured.

The check sent on December 30 to Little Rock was deposited in Omaha, Neb., and paid by the Bank of Waldron, and did not show that it ever went to any bank in Little Rock.

T. R. Harrison testified that he sold policies and collected premiums for appellant, and that sometimes he would remit to appellant by his own check or by a cashier's check, charging 10 per cent. Appellant would send witness a list of policyholders in Waldron twelve or fifteen days before premiums were due; that he collected $10 every quarter from appellee on the policy sued on; that he wrote the policy, and that the application was dated January 29, 1924. He said, if the premium due January 1, 1931, was not paid until January 5, 6, or 8, the policy had lapsed.

Dr. Duncan was introduced and testified as to appellant's injuries, and also introduced a statement made to the company. Dr. Bevil also testified about the injuries to appellee.

Grace Welch, a witness for the appellant, testified that she was mail clerk for the appellant in its home office in Omaha, Neb., and had been for six years; that all premiums which were paid direct to said office by mail were brought to her; that she received a premium on January 8, 1931, in the amount of $10 from appellee. She introduced an envelope in which she said the check came, and she testified also that a reinstatement blank came in the same envelope; that the reinstatement blank showed premium paid on January 6, 1931. She testified that there was no other policy issued to appellee, and that appellee's policy had lapsed on October 1, 1930, for nonpayment of premium due on that date, and that it was not reinstated until January 8, 1931.

The deposition of C. E. Forbes, witness for appellant, was introduced, and in said deposition he testified that the policy had lapsed. He also introduced a letter in which he said that appellee had been notified that his policy had lapsed. This witness also testified that the appellee had no other policy of insurance with appellant.

The deposition of Thelma Webber was introduced. She testified that she was a stenographer and bookkeeper for appellant in the office at Little Rock, Ark., and received all checks and remittances from policyholders which were sent to the Little Rock office; that the Little Rock office received a premium on July 4, 1930, and that no other premium was received until April 1, 1931; that the records at Little Rock showed that the policy was in force until October 1, 1930, and that it was reinstated on January 6, 1931. She had a card showing appellee's payments, and this card constituted all the records in her office with reference thereto. There was no correspondence between the Little Rock office and the Omaha office with reference to appellee's claim. The only record she had in her office showing remittances of appellee on his policy was that contained on the card which she exhibited, and it was attached to her deposition.

She also testified that T. R. Harrison was appellant's collector and furnished by the home office with a list of policyholders whose premiums were due, and that Harrison, after collecting, would remit to the Little Rock office; that the home office sent out notice of premiums due, and that her office notified policyholders of the lapsing of their policies; she did not remember whether she had sent a lapse notice to appellee or not. Her records did not show how the premium was paid on January 6.

Alva Hall testified that he lived in Waldron, was connected with the Chevrolet Company who sold Chevrolets, and waited on the public in servicing, selling, greasing, and oiling cars, and running a general garage and repair business; that, about two hours before he testified, Mr. Gannaway brought a Cadillac or Packard car, and witness took the right front tire therefrom and weighed it; that it weighed 54 pounds.

Numerous instructions were given by the court, and there was a verdict and judgment for appellee in the sum of $2,675, 12 per cent. penalty, and attorney's fees. This appeal is prosecuted to reverse said judgment.

Appellant states that it defends the suit on two grounds: First, that the policy sued on had lapsed, and was not in force on January 5, 1931, the date of the injury; and, second, that the appellee was not totally and permanently injured.

It was contended by the appellant that the policy lapsed on October 1, 1930, because of nonpayment of dues, but the appellant concedes that the finding of the jury against appellant on this point is conclusive. There is therefore no necessity to call attention to or discuss the evidence on this question.

Appellant, however, contends that the premium due January 1 was not paid until January 8, and that the policy lapsed because of the failure to pay the premium due January 1, 1931, and was therefore not in force on January 5, at the time of appellee's injury.

Mack Bird, a witness for appellee, testified that he had been sending the premiums for his father for seven or eight years, and that on December 30, 1930, he sent a check to the company for $10; that the check was mailed on the night of December 30, in a long envelope of the Bank of Waldron, and that he wrote a letter.

The check dated December 30 was introduced in evidence, and showed that it was deposited in...