Pacific Mutual Life Insurance Company v. Walker

• Citation: 53 S.W. 675,67 Ark. 147
• Parties: PACIFIC MUTUAL LIFE INSURANCE COMPANY v. WALKER
• Decision Date: 04 November 1899
• Court: Arkansas Supreme Court

53 S.W. 675

67 Ark. 147

PACIFIC MUTUAL LIFE INSURANCE COMPANY v. WALKER

Supreme Court of Arkansas

November 4, 1899

Appeal from Ashley Circuit Court, MARCUS L. HAWKINS, Judge.

STATEMENT BY THE COURT.

Thos 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, Arkansas. 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 and 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 April and $ 4.70 from 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, and 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 payrolls, and did work as an extra hand for the wages of $ 1.25 per day. He worked five days in June, sixteen 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 4th installment of the premium not being paid; but it did not notify Walker, nor return his order on the railroad company. About 1st of January, 1897, Walker procured a "lay off" for ten 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, Thos. 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 $ 500.00 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 employee of said railway system, and that this order for this payment of premiums was to be paid out of his wages as such employee; and that three installments of said premiums were paid, and that, though plaintiff was 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 non-payment 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.

Judgment reversed and cause remanded.

Morris M. Cohn, for appellant.

Fox & Gray, of San Francisco, Cal., and Z. T. Wood, of counsel.

The statements as to his employment, made by appellee in his complaint, were materially different from his evidence, and the appellant should have been given a new trial on the ground of surprise. 11 Ark. 16, 18; 2 Thomp. Tr. § 2761. Appellee's injury was caused by his own negligence. Being a passenger, he should have kept his seat. 68 N.W. 866; Elliott, Railroads, §§ 1629-1630; 58 Ark. 277-279; 61 Ark. 509; 45 S.W. 1065. He assumed the extra hazards of riding on a freight car. Elliott, Railroads, § 1629. The appellant was under no duty to sue the railroad company for the premiums in order to keep appellee's policy alive and his failure to make the payments forfeited it. 93 U.S. 24, 30, 31; 104 U.S. 88; 46 F. 355; 11 So. 671; S. C. 96 Ala. 570; 19 N.W. 513; 60 Wis. 431; 85 Ky. 677; 125 Ind. 189; 58 Md. 463; 96 U.S. 544; 104 U.S. 252. The first instruction for appellee was erroneous, because it assumed that it was the duty of the insurance company to give appellee notice of the non-payment of the June premium, and also because it assumed that said premium was payable out of any balance due on any other month. 85 Ky. 677; 45 S.W. 539, 543; 104 U.S. 88; 93 U.S. 24, 30, 31; 2 Joyce, Ins. § 1106. Appellant, having changed his occupation to one more hazardous, is bound by the clause in the policy reducing the amount recoverable in such case. 2 Biddle, Ins. § 710; 58 Ark. 277; 45 S.W. 1005. It was error to refuse the second instruction asked by appellant. 2 Biddle, Ins. §§ 895, 896.

Geo. W. and Jas. C. Norman, for appellee.

The evidence sustains the verdict. The application for new trial on the ground of surprise is insufficient. 2 Ark. 45; 33 Ark. 91; 29 Ark. 225. Appellant should have complained at the time and not waited until he was moving for a new trial to allege surprise. 26 Ark. 496; 55 Ark. 567; 57 Ark. 60; 2 Ark. 33.

OPINION

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

This action was brought upon a policy of insurance against accidental injuries. One of the defenses against the action is based on the contention that a certain installment of the premium agreed to be given as a consideration for the policy was not paid. The plaintiff, Walker, gave the insurance company an order on the railroad company, of which he was an employee, for the payment of this installment, it being specified therein that the same should be deducted from his wages. The insurance company contends that by the terms of this order the payment could only be made from...