Pacific Mutual Life Insurance Co. v. Hawkins
| Decision Date | 18 April 1938 |
| Docket Number | 4-5034 |
| Citation | 115 S.W.2d 845,195 Ark. 1099 |
| Parties | PACIFIC MUTUAL LIFE INSURANCE COMPANY v. HAWKINS |
| Court | Arkansas Supreme Court |
Appeal from White Circuit Court; W. D. Davenport, Judge; reversed.
Reversed and cause remanded.
Wilbur D. Mills, John M. Lofton, Jr., and Owens Ehrman & McHaney, for appellant.
J L. Bittle and C. E. Yingling, for appellee.
Appellee brought this suit against appellant in the circuit court of White county to recover $ 25 per month from December 18, 1935, and the premiums he paid after that date under the total and permanent disability clause of a policy of insurance issued to him by appellant on the 5th day of October, 1923.
The total and permanent disability clause contained in the policy is, in part, as follows:
"Should the insured, before attaining the age of sixty and while this policy is in force and no premium thereon in default, become so disabled as to be totally and permanently unable to perform any work or engage in any occupation or profession for wages, compensation or profit, . . . the company will waive the payment of future premiums and pay the insured $ 25 immediately on receipt of due proof of such disability or loss and a like sum on the first day of each month thereafter as long as the insured shall live, and such waiver of premiums and payments to the insured shall not affect any other benefits or value granted under the conditions of this policy."
It was alleged in the complaint that on the 18th day of December, 1935, as a result of disease, the insured became totally and permanently disabled, and on said date furnished the appellant with proof of such disability; and on said date appellee had not yet attained the age of 60 years, and that all premiums had been paid; that appellee was entitled to recover $ 25 per month from and after December 18, 1935; that after said proof was furnished appellee paid three quarterly premiums of $ 15.75 each on November 5, 1936, and on February 5 and May 5, 1937; that appellant refused to admit appellee's disability or to pay him the disability benefits. Appellee prayed judgment against appellant for $ 47.25 as premiums paid appellant after disability commenced, and $ 25 per month from and after the 18th day of December, 1935, for 12 per cent. penalty, and a reasonable attorney's fee.
On the 15th day of June, 1937, appellant filed its answer admitting the issuance of the policy and its provisions and that the policy was in full force and effect in all respects, but denying that the appellee was then or ever had been since the policy was issued totally and permanently disabled within the meaning and terms of said policy, and denying that plaintiff was entitled to recover for the premiums paid after December 18, 1935, or for the benefits of $ 25 per month as alleged in the complaint.
On the 21st day of July, 1937, the cause was submitted upon the pleadings, the evidence introduced by the respective parties and instructions of the court resulting in a verdict and consequent judgment against appellant for $ 47.25 paid on premiums after December 18, 1935, and $ 25 per month from December 18, 1935, to July 22, 1937, the date of the trial, and a 12 per cent. penalty amounting to $ 62.67 and an attorney's fee of $ 200, from which is this appeal.
There is testimony in the record tending to show that on December 18, 1935, appellee, as a result of disease, became totally and permanently disabled and that on that date furnished appellant with proof of such disability; also that he remained in this condition until the date of the trial and might be reasonably expected to remain in such condition during his lifetime.
This evidence, however, was in sharp conflict with testimony introduced by appellant tending to show that appellee was not totally and permanently disabled on December 18, 1935, or at any time subsequent thereto or that such disability would continue during the time which appellee might reasonably be expected to live.
The clause in this policy or clauses very similar to this one have been involved in many cases on appeal to this court, and we have construed this clause and similar clauses to mean that an insured is totally and permanently disabled within the meaning of the clause "when his disability renders him unable to perform all the substantial and material acts of his business, or the execution of them in the usual and customary way." For this interpretation of such clauses in insurance policies reference is made to the cases of Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417, 127 S.W. 457, 29 L. R. A., N. S., 635, 21 Ann. Cas. 1029; AEtna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S.W. 335; AEtna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S.W.2d 310; Missouri State Life Ins. Co. v. Holt, 186 Ark. 672, 55 S.W.2d 788; Mutual Benefit Health & Accident Ass'n v. Bird, 185 Ark. 445, 47 S.W.2d 812; Mutual Life Ins. Co. v. Marsh, 186 Ark. 861, 56 S.W.2d 433; Guardian Life Ins. Co. v. Johnson, 186 Ark. 1019, 57 S.W.2d 555; AEtna Life Ins. Co. v. Davis, 187 Ark. 398, 60 S.W.2d 912; Pacific Mutual Life Ins. Co. v. Dupins, 188 Ark. 450, 66 S.W.2d 284; Travelers Insurance Company v. Thompson, 193 Ark. 332, 99 S.W.2d 254.
Before a recovery can be had under the clause in the policy in...
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