Pacific Mutual Life Insurance Co. v. Carter

• Decision Date: 29 November 1909
• Citation: 123 S.W. 384,92 Ark. 378
• Parties: PACIFIC MUTUAL LIFE INSURANCE COMPANY v. CARTER
• Court: Arkansas Supreme Court

123 S.W. 384

92 Ark. 378

PACIFIC MUTUAL LIFE INSURANCE COMPANY v. CARTER

Supreme Court of Arkansas

November 29, 1909

[Copyrighted Material Omitted]

Appeal from Miller Circuit Court; Jacob M. Carter, Judge; reversed in part.

STATEMENT BY THE COURT.

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 sad 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 alleged that the plaintiff had often requested said company 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:

"Provided: I. This policy shall not take effect unless the premium is paid previous to any injury under which the claim is made. The term of the policy is as stated in the Schedule of Warranties herein, and may be renewed, subject to the same conditions, from time to time, by the payment of the same pre-than thirteen weeks."

"3. If the insured is injured in an occupation or exposure classified by this company in its latest manual as more hazardous than that stated in the Schedule of Warranties, the company's liability shall be limited to such proportion of the principal sum or other indemnity as the premium actually paid will purchase at the rate fixed by the company for such more hazardous occupation or exposure.

"5. No agent has power to waive any condition of this policy.

"6. No claim hereunder shall be valid unless written notice of any injury, fatal or non-fatal, or of any disease for which claim can be made, is given to the company at Los Angeles, California, or to a duly authorized general agent or manager of the company, within twenty days from date of injury or commencement of such disease; nor unless thereafter affirmative proof is given to the company at Los Angeles, California, within twenty days from date of actual total loss as herein defined, or total blindness or paralysis as defined in Article XI (final proof of such blindness and paralysis to be given twelve months thereafter), or within twenty days from the termination of each thirteen weeks' period of continuous disability and from the termination of such disability, if the full period is more or less than thirteen weeks."

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. Hoselton, 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 Hoselton. After Hoselton had turned the renewal receipt over to Carter, he told Head about it, told him that he had turned the receipt over to Carter on the understanding that Carter was to pay for it. Hoselton had confidence in Carter and handed him the receipt. If Carter had not paid for it, Hoselton would have been held responsible for it. Hoselton 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 Hoselton 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 Hoselton 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: "I am engaged in life insurance work as a general agent, and handle some little accident insurance--not much. I began to write accident business about the first of 1907. My stationery is furnished me by the company. At that time 'Claude D. Head, General Agent,' appeared on all stationery. I got my contract from the company several years ago, and in the written contract there is no mention made of the accident business of 1907--only life insurance. I wanted to write some accident business, and I wrote the company to furnish me with the rate book and other supplies, which was done, and this was my authority for writing accident business. They furnished me a form of policy and limited me to towns of five thousand. The section of Arkansas in which I could do business was not mentioned. I have done business wherever I have gone. In 1907 I signed the accident policy as agent. I am not the general agent now. The first of the year we separated the life business, and Mr. Leigh of Little Rock took over the accident business. I received a notice of Sherman Carter's injury through the mail. It was received by me Sunday, and I mailed it the next day. I was out of town during the week, and it might possibly have come into the office a day or two before I got it. The letter handed me was written by me to the Pacific Mutual Life Insurance Company. I suggested to Mr. Carter making out his proof of loss for him. The proof is sworn to on the 7th of October, 1907. The words, '10th day of July, 1907,' were not inserted by me, and that is not my handwriting. I mailed the notice of accident on the 20th day of September, 1907, as shown by my letter, and the proof I mailed after it had been signed and sworn to. My interest in the accident business was merely that I had written the company and told it that I wanted to write some business, and they sent me rate book and supplies. I had no more authority than that. I was not the general agent for accident business in any way. As stated heretofore, I received the notice of injury by mail and forwarded it to the company. As to the proof of loss, I think Mr. Carter called at my office, and we talked it over and made the proof out for him. When I prepared the proof, I told him it would have to be sworn to before some officer. I think he brought the proof back that day, or possibly the next day, and I mailed it to the company. There was no other proof sent to the company that I know of. After the evidence was offered, the bill of exceptions recites the following: "The defendant asked the court to give the following instruction, to-wit: 'Your verdict will be for the defendant.' Thereupon the plaintiff moved the court to instruct the jury to find for the plaintiff for $ 1,444.44 with interest, penalties and attorney's fees. Thereupon the foregoing asked for by each party was discussed by counsel before the court, and upon consideration thereof the court refused to direct the jury to find for the defendant, to which refusal the defendant at the time excepted, and the court in lieu thereof gave the instruction asked for on the part of the plaintiff, to which ruling of the court the defendant at the time excepted, and asked the court to instruct the jury as follows, which request was made and refused before the court directed a verdict for the plaintiff." Then follow several prayers for instruction by the appellant, and after the...