New York Life Ins. Co. v. Jackson

• Decision Date: 04 December 1933
• Docket Number: No. 4-3222.,4-3222.
• Citation: 65 S.W.2d 904
• Parties: NEW YORK LIFE INS. CO. v. JACKSON.
• Court: Arkansas Supreme Court

65 S.W.2d 904

NEW YORK LIFE INS. CO. v. JACKSON.

No. 4-3222.

Supreme Court of Arkansas.

December 4, 1933.

Rehearing Denied January 8, 1934.

Appeal from Circuit Court, Pulaski County, Third Division; Marvin Harris, Judge.

Action by Della M. Jackson, administratrix, against the New York Life Insurance Company. Judgment for plaintiff, and defendant appeals.

Reversed and rendered.

Louis H. Cooke, of New York City, and Rose, Hemingway, Cantrell & Loughborough, of Little Rock, for appellant.

John Sherrill and Osro Cobb, both of Little Rock, for appellee.

SMITH, Justice.

The recent case of New York Life Insurance Company v. Farrell (Ark.) 63 S.W.(2d) 520, decides the exact question which is controlling here. In that case the insured had two policies in the New York Life Insurance Company, each for $5,000. In the instant case there were two policies, written by the same company, each for $10,000. The opinion in the Farrell Case, supra, sets out the provisions of the policies there sued on in regard to disability insurance which read as follows:

"Whenever the company receives due proof, before default in the payment of premiums, that the insured, before the anniversary of the policy on which the insured's age at nearest birthday is 60 years and subsequent to the delivery hereof, has become wholly disabled by bodily injury or disease so that he is and will be, presumably, thereby permanently and continuously prevented from engaging in any occupation whatsoever for remuneration or profit, and that such disability has then existed for not less than sixty days, — the permanent loss of the sight of both eyes, or the severance of both hands or of both feet, or one entire hand and one entire foot, to be considered a total and permanent disability without prejudice to other causes of disability — then

"`1. Waiver of Premium. — Commencing with the anniversary of the policy next succeeding the receipt of such proof, the company will on each anniversary waive payment of the premium for the ensuing insurance year, and, in any settlement of the policy, the company will not deduct the premiums so waived. The loan and surrender values provided for under sections 3 and 4 shall be calculated on the basis employed in said sections, the same as if the waived premiums had been paid as they became due.

"`2. Life Income to Insured. — One year after the anniversary of the policy next succeeding the receipt of such proof, the company will pay the insured a sum equal to one-tenth of the face of the policy and a like sum on each anniversary thereafter during the lifetime and continued disability of the insured. Such income payments shall not reduce the sum payable in any settlement of the policy. The policy must be returned to the company for indorsement thereon of each income payment. If there be any indebtedness on the policy, the interest thereon may be deducted from each income payment.'"

Beginning about June 23, 1920, Gus Bertner, a soliciting agent for the appellant, insurance company, wrote a number of life policies for Bruen O. Jackson. These policies exceeded, in the aggregate, over $200,000; the exact amount not being certain or important. Two of these policies, each for $10,000, contained, in identical language, the disability provisions copied above from the opinion in the Farrell Case, supra.

In 1926, and while these two policies were in full force and effect, Jackson, the insured, became totally disabled, and remained so until his death, which occurred in 1932.

Jackson was a dealer in spot cotton, and had a large number of bales of cotton on hand when the collapse of the cotton market wiped out his very considerable private fortune and wrecked his health. The testimony is practically undisputed that Jackson was totally disabled to work or earn money since the latter part of 1926 to the date of his death. It is also clear that, had Jackson made the proof of this disability which the policies required, he would have been entitled to the disability benefits which his widow, as the administratrix of his estate, has brought this suit to recover.

At the trial from which this appeal comes the court gave, over the appellant's objection, an instruction reading as follows: "No. 3. You are instructed that if you believe from the evidence that the insured became totally and permanently disabled prior to the lapse of the policies sued on herein and that he...