Pacific Mutual Life Insurance Co. v. Toler

• Decision Date: 23 October 1933
• Docket Number: 4-3267
• Parties: PACIFIC MUTUAL LIFE INSURANCE COMPANY v. TOLER
• Court: Arkansas Supreme Court

63 S.W.2d 839

187 Ark. 1073

PACIFIC MUTUAL LIFE INSURANCE COMPANY v. TOLER

4-3267

Supreme Court of Arkansas

October 23, 1933

Prohibition to Saline Circuit Court; Thomas E. Toler, Judge writ denied.

STATEMENT BY THE COURT.

Petitioner seeks a writ of prohibition to Judge T. T. Toler, the circuit judge of the Seventh Judicial Circuit, compelling him to refrain from further proceedings in the hearing of the case of Gus Butler on a policy of life insurance providing for the payment of benefits to insured in the event of his becoming permanently and totally disabled while the policy was in force.

It was alleged that during the latter part of 1932 the policy lapsed for nonpayment of premiums, and, there being no cash surrender value, liability thereunder terminated; that on November 23, 1932, he applied for a reinstatement of the policy, making certain representations as to his health which were not true, and that the company, relying upon said warranties, reinstated the policy; and that thereafter, in April, 1933, he filed a claim for permanent and total disability benefits under the policy, alleging that he had been permanently and totally disabled since December 8, 1931 suffering from myocarditis and other heart trouble; that upon receipt of this information the petitioner canceled the reinstatement of the policy, and on May 6, 1933, tendered him the money which he had paid the company upon reinstatement of the policy, together with interest, and delivered to him at the time a notice that the company had rescinded the policy.

One of insured's attorneys asked one of the attorneys for petitioner whether he would enter the appearance of the petitioner in the Nevada Circuit Court as he desired the case to be tried before it could be reached here. This the attorney refused to do, and the suit was filed on June 21 1933, in the Saline Circuit Court, which was then in vacation and would not meet in regular or adjourned session until September 4, 1933.

On August 31, 1933, attorneys for the insurance company filed a motion to quash the service in the Saline Circuit Court alleging that plaintiff was a resident of Pulaski County, Arkansas; that it was a foreign life insurance company authorized to do business in the State of Arkansas; and that the attempted service of summons upon it was made out of Saline County upon the Commissioner of insurance of the State of Arkansas in Pulaski County, and that it maintained no office or agent in Saline County and had no property there.

On September 4, 1933, attorneys for the petitioner appeared before the respondent and requested a hearing on its motion to quash service. Respondent declined to hear petitioner's testimony, saying it could all be heard upon the trial of the case. Petitioner then sought and obtained a temporary writ of prohibition and is now asking that it be made permanent.

It appears from the abstract of the record that Butler filed his complaint in the Saline Circuit Court on June 21, 1933, which states a cause of action, a copy thereof being attached to the petition. Exhibit B of the respondent herein is a certified copy of an affidavit of plaintiff, stating he is a resident of Saline County, Arkansas, filed in the Saline Circuit Court. Exhibit H to the response is a certified copy of docket entries and orders of the presiding judge herein showing the following docket entries:

"Docket Entries

"9/4/33 Amendment to complaint filed. Motion to dismiss overruled. Cause by consent set for trial September 8.

"9/6/33 Application and bond for removal filed, denied and exceptions saved."

Writ of prohibition denied.

Owens & Ehrman and John M. Lofton, Jr., for appellant.

Melbourne M. Martin, for appellee.

OPINION

KIRBY, J., (after stating the facts).

The writ of prohibition is...