Mutual Life Ins. Co. of New York v. Marsh

• Decision Date: 23 January 1933
• Docket Number: No. 4-2804.,4-2804.
• Citation: 56 S.W.2d 433
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. MARSH.
• Court: Arkansas Supreme Court

56 S.W.2d 433

MUTUAL LIFE INS. CO. OF NEW YORK v. MARSH.

No. 4-2804.

Supreme Court of Arkansas.

January 23, 1933.

Appeal from Circuit Court, Nevada County; Dexter Bush, Judge.

Action by Clarence Marsh against the Mutual Life Insurance Company of New York. From a judgment in favor of plaintiff, defendant appeals.

Modified, and, as modified, affirmed, without prejudice.

See, also, 185 Ark. 332, 47 S.W.(2d) 585.

Frederick L. Allen, of New York City, and Rose, Hemingway, Cantrell & Loughborough, of Little Rock, for appellant.

Martin & Martin, of Little Rock, for appellee.

BUTLER, J.

Action by appellee for total disability under the provisions of a policy issued by appellant. Judgment in the court below, from which is this appeal.

1. The appellant, Mutual Life Insurance Company, is a foreign corporation with its domicile in the state of New York, and the appellee is a citizen of this state. The amount sued for was $3,000 and attorney's fee. It is the contention of the appellant that the prayer for attorney's fee made the amount sued for more than $3,000, exclusive of interest and costs, within the meaning of the federal statute (Jud. Code §§ 24(1), 28, 28 USCA §§ 41(1), 71), and on that theory, in apt time, filed its petition for removal of the cause to the United States District Court in the proper district. The court overruled that motion, and this action of the court is the first assignment of error urged upon our attention.

Counsel for appellant has cited a number of cases which support their view, but this court has recently had the identical question before it in the case of Missouri State Life Ins. Co. v. Johnson, 54 S.W.(2d) 407, November 14, 1932, and ruled against the contention here made. On the authority of that case we hold that the assignment urged is not well taken.

2. That portion of the policy involving the question of disability and the rights and duties of the parties in respect thereto, is that upon due proof to the company by insured "that he has become totally and permanently disabled by bodily injury or disease so that he is, and will be, permanently, continuously and wholly prevented thereby from performing any work for compensation, gain or profit, and from following any gainful occupation" that, during the continuance of the disability and after proof made, the payment of premiums accruing thereafter will be waived by the insurer and it will pay to the insured a monthly income of $10 for each $1,000 of the face value of the policy, the first premium being due on receipt of said proof and subsequent payment on the first day of each calendar month thereafter; that after proof had been made and accepted the insured nevertheless was required, no oftener than once a year on demand of the insurer, to furnish proof of the continuance of the disability, and the right was reserved, if it should appear to the insurer that the insured had become and was able "to perform any work or follow any occupation whatever for gain or profit, no further premium shall be waived and no further income shall be paid."

The policy was for $2,000, issued on January 18, 1922; the premiums were regularly paid on or before their due date; and it was in full force and effect on July 28, 1926, the date of appellee's injuries. Thereafter, appellee made claim and furnished due proof of total and permanent disability occasioned by his injuries; the claim was allowed, and the insurer made the disability benefit payments of $20 per month to the insured regularly until and for the month of December, 1930. Ascertaining that the insured had been elected to the office of circuit clerk of Nevada county and was inducted into office on January 1, 1931, the insurer declined to make any further payments on the ground that the insured was no longer permanently disabled within the meaning of the policy, but was able to work and engage in a gainful occupation.

At the time of the injuries received by the appellee, he was a traveling salesman for a drug company. As a result of his injuries his right arm is totally paralyzed, his right leg, because of fractures it sustained, has become shorter, and its function impaired so that he uses it with pain and difficulty, and it is not more than 25 per cent. efficient. At the time of the trial of this cause and before, at intervals of about sixty days, a sinus develops in the upper part of the leg, causing appellee to run a high temperature, and requiring his confinement in bed for a period of about two weeks. It was necessary at these times that the sinus be opened to allow drainage. After the sinus is thoroughly drained he begins to feel better and can get around for a while until the sinus develops again. On the right heel there is a constant sinus which causes appellee discomfort. He is unable to walk without the use of a cane, and is obliged to wear a shoe specially constructed to fit the right foot because of the shrinkage of the bone from the fracture.

It is conceded that appellee's physical condition is permanent and such as is calculated to lessen his power of resistance, and to destroy his vitality. His mental powers have not been affected by his injury, and his mind is as it was before the date of the accident. In the summer preceding the election, he was able to, and did, conduct an active campaign for office; he went around the country in a car, having some one to drive for him, making the rounds with the other candidates and making frequent speeches to the voters, and was not seriously ill during the campaign. The appellee is not able to do any physical work in connection with his office, which requires a considerable amount of physical labor. The office is conducted by means of deputies. It is on a fee basis, and from the fees received the appellee pays for the deputies needed. He is able to sign his name with his left hand, and spends the time sitting around the office giving it his general supervision. It appears that with the exception of signing his name the appellee is unable to do anything of a substantial nature in his office; and while he is able to go to the office daily, and usually to remain during office hours, some two or three times a week he is obliged to leave and go home about two o'clock because his injured leg requires rest. Although he conducts the office by deputies, he has received, in addition to the salaries paid to them, a substantial sum from the time he went into office until the date of the last trial in the court below.

From these facts, which are undisputed, it is strongly insisted that a case arises where the injuries, though great, and the disabilities, though serious, do not bring them within the nature of such as were contemplated when the policy was issued, and counsel do not believe a single case can be found where a recovery under such conditions has been sanctioned. It must be conceded that this is a unique case, and it is to be doubted whether one similar in all circumstances has been before the courts. We do not agree, however, with the theory held by the appellant, for if we adopt it no case of total disability can arise except where not only the body is disabled, but the mind wrecked as well. No matter how seriously the body may be affected, there are those who because of some peculiar ability or because of some happy chance are still able despite their handicap to escape from beggary and to earn a living. Cases are not infrequent where men have been stricken totally blind and yet have earned substantial incomes; some, with their bodies totally disabled, have been able to conduct a successful business from the bed in which they are continuously confined; others, because of fortuitous circumstances, have been placed in a position where they were removed above want. These cases all arise, however, because of the possession of some extraordinary capacity or of some fortunate circumstance. Certainly, no cases of this character were in the minds of the insured or the insurer when the contract was entered into, but only the ordinary and usual events that would affect the ordinary person.

In construing contracts such as the one now before us, it has always been insisted by the insurer that a strict and literal interpretation is required, and a few courts have adopted this view. The great majority, however, decline to do so on the theory that a fair intention of the parties is that the insured should receive indemnity when he is so injured as would prevent him from carrying on any business which, without the injury, he is able to do or capable of engaging in. In the case of Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457, 458, 29 L. R. A. (N. S.) 635, 21 Ann. Cas. 1029, the following rule was announced: "In the construction of all contracts the true object is to arrive at the intention of the parties; and, in order to do that, it is necessary to take into consideration the object...