Sun Life Assurance Co., of Canada v. Coker

• Decision Date: 12 June 1933
• Docket Number: 4-3016
• Citation: 61 S.W.2d 447,187 Ark. 602
• Parties: SUN LIFE ASSURANCE COMPANY OF CANADA v. COKER
• Court: Arkansas Supreme Court

61 S.W.2d 447

187 Ark. 602

SUN LIFE ASSURANCE COMPANY OF CANADA v. COKER

4-3016

Supreme Court of Arkansas

June 12, 1933

Appeal from Pope Circuit Court; A. B. Priddy, Judge; affirmed.

Affirmed.

Hays & Smallwood and Pryor & Pryor, for appellant.

R. M Priddy and Sam T. & Tom Poe, for appellee.

OPINION

MCHANEY, J.

Appellee recovered a verdict and judgment against appellant in the sum of $ 1,864.36 with interest from January 4, 1933 at 6 per cent., 12 per cent. penalty and attorney's fee of $ 250, alleging a breach of a certificate of insurance issued to him and a group policy issued to his employer, Missouri Pacific Railroad Company, dated November 1, 1931, by which he was insured against total and permanent disability, in which event appellant agreed to pay him $ 36 per month for 60 months. The sum recovered was the then present value of the sum agreed to be paid monthly over said period.

A number of errors are assigned and argued for a reversal of the judgment as follows:

(1). That if appellee were disabled within the meaning of the policy, his disability accrued before and existed at the date of the policy, November 1, 1931, and that, therefore, he had no health or ability to be insured. In other words, that a fraud was practiced on appellant in obtaining insurance, since no physical examination was required. This argument is based on the fact that appellee suffered an amputation of his right leg between the ankle and knee in 1926, and that he has had considerable trouble with the stump thereof since that time, and on the testimony of his physicians that for a number of months prior to April 28, 1932, the date he finally quit work, and from which he claims total disability, he should not have done heavy work. On the other hand, the undisputed proof shows that appellee did actually work and was engaged in a gainful occupation for a long period of time prior to the issuance of the policy in this case and subsequent to the loss of his leg in 1926, as also since November 1, 1931. Under this state of facts, the court submitted this question to the jury in instruction No. 8, requested by appellant, which told the jury that the burden was on him "to prove by a preponderance of the evidence that he became disabled under the terms of the insurance contract 'while such assurance was in full force and effect' and not before or after the term of insurance coverage," and if he failed to do so, the jury should find for appellant. The jury found that he had discharged this burden, and we cannot say there is no substantial evidence to support the finding. Generally, it is a question for the jury to determine whether the insured is disabled, the nature of the disability, when it commenced and its duration, whether total and permanent or otherwise. Mutual Ben. H. & Acc. Ass'n v. Hunnicutt, 181 Ark. 892, 28 S.W.2d 703; 29 C. J. 284.

(2). It is next argued that appellee failed to prove a breach of the contract of insurance, and that he cannot maintain this action for a breach thereof. This argument is based on the fact that suit was begun on September 30, 1932, a date less than six months from the date of alleged total disability April 28, and that under the contract the first monthly payment of $ 36 was not due to be paid until the expiration of six months from date of total disability, or three months from date of satisfactory proofs, whichever is the later date. A sufficient answer to this argument is that appellant denied liability within that time, and we think did so within the rule announced in Mutual Life Ins. Co. v. Marsh, 186 Ark. 861, 56 S.W.2d 433. When demand was made on appellant to pay and perform the contract, it declined to do so, and in two letters to counsel for appellee stated that their records showed the coverage to be canceled on April 30, 1932, or had lapsed. This was tantamount to a denial of liability. Furthermore, it was shown that a representative of appellant called upon counsel for appellee and had a conversation with him in which he declined to pay. Moreover, it filed an answer in this case long after the expiration of the six months' period denying liability. All of which amounted to a renunciation of the...