Pacific Mut. Life Ins. Co. v. Carter
Decision Date | 29 November 1909 |
Citation | 123 S.W. 384 |
Parties | PACIFIC MUT. LIFE INS. CO. v. CARTER. |
Court | Arkansas Supreme Court |
Appeal from Circuit Court, Miller County; J. M. Carter, Judge.
Suit by William S. Carter against the Pacific Mutual Life Insurance Company. From a judgment for plaintiff, defendant appeals. Modified and affirmed.
The appellee sued appellant on a policy of insurance issued by appellant to appellee, insuring the latter against bodily injuries effected directly through external, violent, and accidental means. The policy provided for the payment of one-third of $5,000 if the assured should become permanently and totally blind in either eye. The complaint alleged that on the 5th day of September, 1907, while he was engaged in his occupation as brick contractor, and, while attempting to drive a nail, he struck said nail in such manner that it rebounded, hitting him in the left eye, inflicting an injury that made it necessary for said eye to be removed; that said policy was in full force and effect on said date; that on or about the 25th day of September, 1907, he furnished affirmative proof of said injury to the defendant company through its general agent in the state of Arkansas to the defendant company at Los Angeles, Cal., as required by the policy. The complaint alleges that the plaintiff had often requested said defendant to pay for said injury, but said defendant had refused to do so. Appellee prayed for judgment in the sum of $1,666.66. The answer denied all the material allegations of the complaint, and set up that the manual labor in which appellee was engaged at the time of his injury was more hazardous than that of "brick contractor, superintending only," which was the occupation appellee warranted that he was pursuing when the policy was issued, that for the more "hazardous occupation" appellee was only entitled under the policy to the sum of $1,444.44 for an accident rendering him totally and permanently blind in either eye; that appellee had failed to file proof of loss within the time specified in the policy; and that at the time of his injury the premium for insurance was due and unpaid, and that the policy therefore was not in force at the time of appellee's injury. Appellee was permitted during the progress of the trial, over appellant's objection, to amend his complaint and to ask for judgment for an attorney's fee and penalty. Embodied in the policy was a schedule of warranties signed by the assured, in which, among other things, he warranted his occupation as that of "brick contractor, superintending only."
The policy contains the following provisions, to wit:
The appellee introduced in evidence the policy sued on, showing that he was insured with appellant from April 10, 1907, to July 10, 1907. He signed a schedule of warranties showing that his occupation was that of "brick contractor superintending only" which warranty, with the premium, was the consideration for the policy. The consideration paid was $19.50. The schedule of warranties was made a part of the policy. The policy was countersigned "by a duly authorized agent," C. D. Head. The policy expired July 10, 1907.
In the latter part of July, 1907, Mr. Haselton, who was a soliciting agent, gave appellee a receipt for the premium of renewal from July 10, to October 10, 1907. The amount called for in the receipt was not actually paid until September 5, 1907, the day the accident occurred, and after the injury was received. The appellee at the time he received the injury was setting a tile mantel and driving a spike between the joints, which rebounded, striking him in the eye and causing its loss. After the injury to his eye, and on the same day, Gus Less the man for whom the appellee was working and who owed appellee, paid the premium for him. The premium was paid to Haselton. After Haselton had turned the renewal receipt over to Carter, he told Head about it — told him that had turned the receipt over to Carter on the understanding that Carter was to pay for it. Haselton had confidence in Carter and handed him the receipt. If Carter had not paid it, Haselton would have been held responsible for it. Haselton did not know at the time he received the money from Less for Carter's premium that the accident had happened. It was about three days after the money was received by him when he learned that the accident had happened to Carter. It was shown that appellee had a conversation with Head concerning the receipt that Haselton had given appellee, and that in such conversation, Head said it was all right with him, that if it had not been paid he would have looked to Haselton for it and he would have had it to pay. This conversation was after the accident. The testimony of C. D. Head on the question of his agency, and what he did as to proof of loss, is as follows: ...
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National Fire Ins. Co. v. Kight, 196.
...that there can be no recovery for damages and attorney's fee where the judgment is for less than the demand. Pacific Mutual Life Ins. Co. v. Carter, 92 Ark. 378, 123 S. W. 384, 124 S. W. 764; Industrial Mutual Indemnity Co. v. Armstrong, 93 Ark. 84, 124 S. W. 236; Interstate Business Men's ......