Occidental Life Ins. Co. of Cal. v. Sammons, 5-423
| Decision Date | 11 October 1954 |
| Docket Number | No. 5-423,5-423 |
| Citation | 271 S.W.2d 922,224 Ark. 31 |
| Parties | OCCIDENTAL LIFE INSURANCE COMPANY OF CALIFORNIA, Appellant, v. Murl L. SAMMONS, Appellee. |
| Court | Arkansas Supreme Court |
Moore, Burrow, Chowning & Mitchell, Little Rock, for appellant.
Dennis K. Williams, Texarkana, O. D. Longstreth, Jr., Dave E. Witt and Joseph Brooks, Little Rock, for appellee.
This is an action at law by the plaintiff for recovery of monthly sick benefits under the insurance policy contract plus the statutory penalty of 12% and attorney's fees.
Suit was filed on May 8, 1952. Parties waived a jury and the case was tried before the lower Court sitting as a jury. The trial court entered judgment against the defendant for $5,700, representing 57 months sickness disability allowance at $100 per month. From the Judgment so entered, the defendant has perfected this appeal. The action was tried on a stipulation of fact, testimony of the plaintiff and the testimony of a physician for the plaintiff.
The whole question involved in this case concerns the effect of a rider attached to the policy which we quote as follows:
'For the consideration expressed in the policy to which this rider is attached, the Company agrees that:
'If such sickness, for which Monthly Indemnity is payable under the terms and conditions of Part 5 of this policy, shall continue beyond the period of twelve consecutive months provided therein, the Company will continue the payment of the Monthly Indemnity for the period the Insured shall live and be wholly and continuously disabled and necessarily and continuously confined in the manner required in the next paragraph and regularly visited and treated by a legally qualified physician or surgeon other than himself.
The facts in this case are not in dispute nor are they contested.
Based on the stipulation and the testimony of the plaintiff and his physician, the trial court found: (1) that during the entire period for which plaintiff seeks recovery herein, the plaintiff followed the practice of leaving his house and the yard situated immediately around the house frequently for the purpose of taking rides, walking for recreation and visiting with friends at various places of business, but that all such activities were engaged in upon the advice of Dr. J. N. Compton, plaintiff's physician; (2) that the plaintiff did not engage in any remunerative work during the period for which he seeks recovery herein until the year 1950 during which year he worked a few Saturdays but such work was irregular; that he worked between November 11, 1950 and December 30, 1950 and earned by reason thereof $180, and that since that time he has worked as an extra salesman; (3) that the plaintiff became ill of heart disease and that his heart condition will not substantially improve, and that plaintiff will never be able to resume full time work as a clothing salesman; (4) that the work which the plaintiff did was all done upon the advice of his physician.
In the case of Pate v. Fears, Ark., 265 S.W.2d 954, opinion delivered March 22, 1954, this Court said that where a jury is waived and the case is tried before a Judge sitting as a jury, his finding of fact on a question of fact is as conclusive on appeal as a jury verdict,...
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