Rutland v. P. H. Ruebel & Company

• Decision Date: 13 October 1941
• Docket Number: 4-6237
• Citation: 154 S.W.2d 578,202 Ark. 987
• Parties: RUTLAND v. P. H. RUEBEL & COMPANY
• Court: Arkansas Supreme Court

154 S.W.2d 578

202 Ark. 987

RUTLAND v. P. H. RUEBEL & COMPANY

4-6237

Supreme Court of Arkansas

October 13, 1941

Appeal from Pulaski Circuit Court, Second Division; Gus Fulk, Judge on exchange; reversed.

Judgment reversed and cause remanded.

Rose Loughborough, Dobyns & House, for appellant.

Henderson Meek & Hall and Donham, Fulk & Mehaffy, for appellee.

GREENHAW J. GRIFFIN SMITH, C. J., MEHAFFY and MCHANEY, JJ., dissent.

OPINION

GREENHAW, J.

The appellee in this case, a corporation, was engaged in the undertaking business in the city of Little Rock, its sole stockholders, officers, and directors being Alfred Leymer, his wife and his sister-in-law, Miss Ruebel. Leymer was secretary-treasurer and manager. The appellant was employed as an embalmer for appellant by Mr. Leymer in 1925. At that time another employee, Carl Vess, was assistant manager. In 1928 the said Carl Vess became totally disabled due to illness, which terminated his services for appellee. Thereupon the duties of Vess were delegated to the appellant.

The appellee carried an insurance policy with the John Hancock Mutual Life Insurance Company upon the life of Carl Vess for $ 10,000 with a total disability provision of $ 100 per month, which was paid to Vess while he was disabled. On December 18, 1928, a similar policy was issued by the same company for $ 10,000 on the life of the appellant, with total disability provisions and waiver of premiums in the event of total disability, the beneficiary being the estate of the appellant. On December 21, 1928, said $ 10,000 policy was duly assigned to the appellee, who thereby became the owner thereof and paid all premiums thereon until the appellant also became totally disabled in June, 1938. Appellant had been continuously employed by appellee since 1925, with the exception of about two weeks in January, 1930.

The insurance company began making payments on said $ 10,000 policy direct to the appellee in the sum of $ 100 per month about July, 1938. The appellee collected said monthly payments and in turn paid the amounts collected in 1938 to the appellant monthly. After handling the matter in this manner for about six months the appellee wrote the insurance company to pay these monthly disability installments direct to the appellant until further notice. Thereupon the insurance company paid the monthly disability installments due under said policy direct to the appellant throughout the year 1939. The appellee in the early part of January, 1940, notified the insurance company to make no more payments to appellant, and to pay said monthly installments direct to it. This action on the part of the appellee in stopping the disability payments to appellant resulted in the appellant's filing suit against the appellee in the Pulaski circuit court. The case was tried by a jury, resulting in a verdict for the appellee signed by nine jurors, upon which judgment was entered for it, and from which is this appeal.

The complaint alleged the defendant was a corporation engaged in the undertaking business, that plaintiff was employed and began working for defendant in 1925 and remained in its employ with the exception of about two weeks in January, 1930, until June, 1938; that in December, 1928, the defendant, acting through its duly authorized officers, agreed as an inducement to plaintiff to continue in its employ that it would take out a policy of insurance in the amount of $ 10,000 on plaintiff's life; that said policy would contain provisions for the waiver of premiums and the payment of $ 100 per month in the event the plaintiff should become totally and permanently disabled: that the policy would be assigned to the defendant, but in the event of plaintiff's total and permanent disability the disability benefits collectible under the policy would be paid to the plaintiff as a consideration for past services; that plaintiff consented to continue in the employ of defendant and the policy was issued and assigned to the defendant, all in accordance with the agreement; that in January, 1930, the plaintiff went to New Orleans for a period of two weeks; that he returned to Little Rock and was informed by the defendant that the policy was still in force and that the disability benefits collectible thereunder would be paid to him if he would resume employment; that in consideration of that offer the plaintiff resumed his duties and worked until June 11, 1938, at which time, by reason of a serious heart malady, he was forced to retire from business; that in accordance with the terms of the agreement, which had been completely and fully performed on plaintiff's part, the defendant directed the insurer to pay the disability benefits to the plaintiff, and such benefits were paid without interruption until the 17th of January, 1940; that since said date all payments made by the insurer have been appropriated by the defendant in violation of the contract, and plaintiff prayed judgment for the monthly installments collected by the defendant from January, 1940, to the date of trial.

The defendant in its answer admitted that plaintiff was employed in 1925 and remained until June 11, 1938, except for the short time that plaintiff was in New Orleans. It denied that it agreed as an inducement to plaintiff to continue in its employ to take out a policy of insurance; denied there was any agreement that the policy was to contain disability benefit provisions, and that benefits collectible thereunder would be paid to the plaintiff; admitted that plaintiff went to New Orleans, but denied when he returned to Little Rock he was informed that the policy was still in force, or that the defendant offered to continue it in force and pay the disability benefits to the plaintiff if he became disabled; denied that in accordance with the terms of the agreement the insurer was directed to pay the disability benefits to the plaintiff, or that it collected any disability benefits in 1940 in violation of the terms of the agreement. It alleged that the policy of $ 10,000 with provision for waiver of premiums and payment of $ 100 per month in the event of total disability was obtained and paid for by it upon the life of the plaintiff, but that said policy was the sole property of the defendant at the time it was issued, at the time of the assignment, and at all times thereafter, and that plaintiff never at any time had any interest therein; that when the plaintiff became disabled the defendant voluntarily, in order to assist the plaintiff, directed the insurance company to pay disability benefits to the plaintiff until such time as the defendant notified it not to do so; that it notified the insurer in January, 1940, to make all further payments under the policy directly to the defendant, and since that time payments have been made to the defendant; that the plaintiff has no interest therein, and that same belonged to the defendant.

There was a direct conflict in the testimony of the appellant, Rutland, and Alfred Leymer, the secretary-treasurer and manager of appellee corporation, as to the alleged contract which was the basis of this lawsuit. The appellant testified that when he accepted the position as assistant manager in 1928, Leymer agreed to carry a $ 10,000 life insurance policy on him, with a $ 100 per month total disability provision, and that appellant would be paid said disability benefits in the event of his total disability; that he accepted said position under this agreement; that he resigned in January, 1930, and went to New Orleans, and returned in about two weeks; that Leymer then told him if he would resume his employment, the total disability benefits under the terms of said policy would be paid to him if he became totally disabled, as long as he was disabled; that he accepted said offer, relying on Leymer's statement, and resumed his work for appellee and continued to work until he was totally disabled in June, 1938; that he was paid said disability payments until January, 1940, when appellee had them stopped.

Alfred Leymer testified that there was no agreement with appellant about paying him the disability payments in the event he was disabled, either when appellant was made assistant manager in 1928, or when he returned from New Orleans in 1930 and resumed his former position; that there never was any agreement that appellant would receive the insurance disability payments; that after appellant was disabled and the insurance company began making these payments, the appellee voluntarily and because they wanted to help appellant, paid and caused to be paid to the appellant these monthly disability payments for a period of 18 months; that appellee will collect $ 10,000 upon the death of appellant.

The appellant and Leymer were the only witnesses who testified about the alleged contract. There were other witnesses and facts and circumstances in evidence. Thus it is seen that there was a direct conflict in the evidence of appellant and Mr. Leymer as to the existence of the alleged oral agreement upon which this litigation is predicated. The one said there was such an oral agreement; the other said there was not. This was the issue to be determined.

The appellant filed a motion for a new trial, assigning as errors the court's action in giving instructions Nos. 2, 3, and 4 requested by appellee over the appellant's general objections to instructions Nos. 2 and 3, and over his general and specific objections to instruction No. 4. In a supplemental motion for new trial the appellant assigned, as an additional ground therefor, newly discovered evidence. The motion for a new trial was overruled, to which appellant excepted. We do not think the court erred in giving the defendant's requested instructions Nos. 2 and 3, nor in refusing...