Reliance Life Insurance Company v. Hardy
| Decision Date | 24 May 1920 |
| Docket Number | 4 |
| Citation | 222 S.W. 12,144 Ark. 190 |
| Parties | RELIANCE LIFE INSURANCE COMPANY v. HARDY |
| Court | Arkansas Supreme Court |
Appeal from Phillips Circuit Court; J. M. Jackson, Judge; affirmed.
Judgment affirmed.
Milton B. Rose, for appellant.
1. At the request of the owner the premiums on the life policy were made payable quarterly instead of annually, and the policy was made payable to the wife (appellee). No such change was made in the health policy. The onus of establishing the payment of premiums due under the terms of the policy was on the plaintiff, and the evidence shows that the policy had lapsed. It was error prejudicial to refuse the postponement of the case. 2 Ark. 33; 10 Id. 527.
2. The court erred in permitting the introduction in evidence of the policy, 97345-H, as it was not sued on and was irrelevant and immaterial.
3. It was fatal error to give the peremptory instruction for plaintiff. 100 Ark. 71; 105 Id. 25. There is no evidence in the record to sustain the action of the trial judge. The proof showed that the policy had lapsed by reason of the failure to pay the quarterly premium due October 3. The burden was on plaintiff to show that deceased, Hardy applied for reinstatement of his policy on November 10; that he remitted with his application $ 19.88; that he executed a health certificate reciting only the sickness in August 1917, and that the company refused to reinstate the policy and returned the remittance within one week and that Hardy cashed the check sent to him. 83 Ark. 575; 75 Id 25. All premiums were payable at the home office or to an agent of the company upon delivery of a receipt signed by the president or secretary of the company and countersigned by such agent. No such receipt is shown to have been given. The defendant's motion for a peremptory instruction should have been given.
Moore & Vineyard and Fink & Dinning, for appellee.
1. There was no error in refusing the postponement of the trial, as there was no abuse of discretion on the showing made.
2. The court properly instructed a verdict, as the evidence shows that the premium was paid and the policy never lapsed. 111 Ark. 514; 68 Id. 505. See, also, 192 Ill.App. 69; 133 Iowa 379; 106 N.W. 947; 156 Iowa 201; 200 S.W. 320; 129 Id. 303; 133 N.W. 793; 180 Pa. 360; 163 Ky. 364; 125 Ark. 372; 111 Id. 514.
On July 3, 1916, the appellant issued to Eno D. Hardy two policies of insurance. One was a life policy and the other a health policy. They were separate instruments and separate contracts, but between the same parties. The health policy was issued for a period of twelve months and was made payable to the insured, and was not assignable, except by the written consent of the company. The life policy was payable to the executors, administrators, assigns, or beneficiaries of the insured. The annual premium on the health policy was $ 19.50. The annual premium on the life policy was $ 56.58. On August 9, 1917, at the request of the insured the premiums on the life policy were made payable quarterly instead of annually, and the beneficiary was changed to the insured's wife, Velma Hales Hardy, the appellee.
August 18, 1917, Eno D. Hardy contracted fistula and was confined on account thereof ten days, which entitled him to sick benefits under his health policy in the sum of $ 20. The claim for this sick benefit was sent in to the company, according to the testimony of the appellee, "some time in July or August." "She was not sure about the date." At any rate there was a delay in paying this claim until November 10, when the company sent Hardy, by letter, check for $ 20, which he received November 14, 1917, and signed receipt to the company for the amount thereof, dated November 10, 1917. On the same day Hardy applied to the company to reinstate his policies, remitting to appellant, with his application, the sum of $ 19.88. This application was declined by appellant on November 17, 1917. Appellant on that day returned to Hardy the amount of his remittance, which he accepted.
The quarterly premium due on October 3, 1917, on the life policy was the sum of $ 19.88. Under the terms of the policy, if this quarterly premium was not paid one month after the same became due, the policy lapsed. If paid on the 3d of October or one month thereafter, then the policy did not lapse, but continued in force until the next quarterly payment, which was due January 3, 1918.
Hardy, the insured, died on the 20th of December, 1917. The appellee instituted this action on the life policy, which was in the sum of $ 3,000.
The appellant denied liability on the ground that, at the time of Hardy's death, the policy had lapsed, because of the nonpayment of the premium, which in order to keep the policy in force should have been paid on or before November 3, 1917.
The case was called for trial on October 30, 1919. Messrs. Bevens & Mundt had been retained the day before to assist Milton B. Rose, leading attorney for appellant, in the trial of the cause. Appellant, through its assistant counsel, asked for a postponement of the trial until a later day of the term, assigning as a reason that they had not had sufficient time to acquaint themselves with the facts and law of the case and that Milton B. Rose was sick and unable to attend. The court overruled the motion.
The above were the issues and facts developed at the hearing upon which both parties asked for a peremptory instruction. The court granted the prayer of the appellee and instructed the jury to return a verdict in the sum of $ 3,337.60. Judgment was rendered for the appellee in that sum, from which is this appeal.
Appellant contends that the court erred in overruling its motion for a postponement to a later day in the term on account of the illness of its leading counsel, Milton B. Rose. The certificate of the physician attached to the motion shows that Rose had been ill all the summer. The issue had been made up for more than eighteen months at the time the motion for...
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