Pacific Mut. Life Ins. Co. v. Walker

• Decision Date: 04 November 1899
• Citation: 53 S.W. 675
• Parties: PACIFIC MUT. LIFE INS. CO. v. WALKER.
• Court: Arkansas Supreme Court

53 S.W. 675

PACIFIC MUT. LIFE INS. CO. v. WALKER.

Supreme Court of Arkansas.

November 4, 1899.

Appeal from circuit court, Ashley county; Marcus L. Hawkins, Judge.

Action by Thomas J. Walker against the Pacific Mutual Life Insurance Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

Thomas J. Walker was, on the 22d day of February, 1896, engaged in the occupation of coal heaver for the Iron Mountain Railway Company, at Wilmot, Ark. On that day he procured from the agent of the Pacific Mutual Life Insurance Company an accident policy insuring him against violent and accidental injuries for one year. The policy recites that it was issued in consideration of the representations and warranties contained in the application for insurance, the stipulations in the policy, and also in consideration of an order drawn on the St. Louis, Iron Mountain & Southern Railroad Company. This order on the railroad company authorized its paymaster to deduct from the monthly wages of Walker, and pay to the insurance company, the following sums: $4.65, $4.70, $4.70, $4.70, in four installments. In obedience to this order, $4.65 was deducted from Walker's March wages, $4.70 from the April, and $4.70 from the May, wages. This order was not put in evidence, and it is not clear from the evidence whether, by the terms of the order, the remaining installment of $4.70 was to be paid from the June wages only, or whether it authorized the company to pay it from the June and July wages of Walker. Walker was taken sick in May, was sent to the railroad hospital, and remained there about two weeks. When he returned, the railroad company had another man employed in his place, but he still, so he says, remained on its pay rolls, and did work as an extra hand for the wages of $1.25 per day. He worked 5 days in June, 16 in July, and almost continuously from that time until in January, 1897. The general auditor of the railroad company testified that Walker's name did not appear on the company's pay rolls after May, and that, as there was nothing due him for the months of June and July out of which he said the last installment of $4.70 was to be paid the insurance company, his order was considered of no further validity, and dropped from consideration. The railroad company for that reason did not pay the insurance company the last installment. The policy sued on contained this provision: "The four installment payments as specified in the above order are premiums for consecutive and corresponding insurance periods, two, two, three, and five months. Every payment made and accepted on account of said order shall be applied to the installments thereof in the order in which they fall due." Then follows a provision that "no claim shall be made under this policy for injuries occurring in any of said insurance periods if the corresponding or any previous installment premium has become due and remains unpaid." The insurance company claimed that the policy expired the 22d day of September, 1896, that being the ending of the third period of insurance, the fourth installment of the premium not being paid; but it did not notify Walker, or return his order on the railroad company. About the 1st of January, 1897, Walker procured a "lay off" for 10 days, to visit his mother, in Louisiana, and while on that trip received an accidental injury, which resulted in the loss of his left foot and a portion of his leg. He afterwards brought this action to recover the sum of $500, the amount claimed by him as due under the policy. The insurance company denied liability on several grounds, one of which was that the last installment of the premium had not been paid. On the trial of the case the circuit court gave the jury, over objection of the defendant, the following instruction: "The court instructs the jury that if they believe, from the evidence, that the plaintiff, Thomas J. Walker, has sustained an accidental injury by which he lost his left foot about the time mentioned in his complaint, and that prior to said accident he had obtained in the Pacific Mutual Life Insurance Company an insurance policy to indemnify him against accident, and that it was in force at the time that said accident occurred; and that by the terms of the said policy he was to receive the sum of $500 if he, by accident, received an injury that resulted in the loss of one foot within ninety days after said accident occurred, and that at the time the said policy of insurance was issued to him he gave the said Pacific Mutual Life Insurance Company an order for all of the premiums due on said policy upon the St. Louis, Iron Mountain & Southern Railway Company, and that at that time he was an employé of said railway system, and that this order for this payment of premiums was to be paid out of his wages as such employé and that three installments of said premiums were paid; and that plaintiff, though continually in the employ of the said railway company up to the time of the accident, said insurance company gave him no notice of the nonpayment of the last installment on said premium; and that within the time required by the insurance policy he gave notice of his said injury by accident, — then they will find for the plaintiff in the sum of $500, with 6 per cent. interest from the 1st of April, 1896, to date." There was a verdict for the plaintiff, from which the insurance company appealed. The other facts sufficiently appear in the opinion.

Morris M. Cohn (Fox & Gray and Z. T. Wood, of counsel), for appellant....