-602 . -SuNIAF-E---A'ssuR. CO. OF' CANADA V. COKEK. [187 SUN LIFE ASSURANCE COMPANY OF CANADA V. COKER. . 4-3016 Opinion Oelivered June 12, 1933. 1.. INSURANCE—DISABILITY INSURANCE.—In a suit on a policy of dis-• ability insurance, evidence held to support a finding that insured became 'disabled during the period covered by the insurance. g. INSURANCE—JURY QUESTION.—Generally, it is a question for the • jury whether insured is disabled, the nature of his disability, • when it coinmenced, and •its duration, and whether to . tal and permanent. . 3. INSURANCE—WAIVER OF LIMITATION. Insured could maintain an action for breach of a policy providing that the first monthly payment was not due till six months from date of total disability, though he commenced his action before that . date, where within that time the insurer denied any liability. 4. INSURANCE—ACTION ON POLICY—DEFENSE. ID an action on a group policy issued to insured's employer, insured was not required to prove that his employer paid the premium on the policy, as a failure to pay would be a defense to be interposed by the insurer. 5. INSURANCE--ACTION ON POLICY—EVIDENCE.—In. an action on a • certificate of insurance issued to insured and a group policy issued to his employer, the insurance contract was proved, though the group policy ' was not produced, where the certificate stated the terms and conditions of the group policy, to which insured had no access. • INSURANCE—PENALTY AND ATTORNEY'S FEE.—The statute relating to penalty and attorney's fee (Crawford & Moses' Dig., §.6155) is penal and should be strictly construed. 7. INSURANCE—PENALTY AND ATTORNEY'S FEE.—Crawford & Moses' Dig., § 6155, entitling insured to penalty and attorney's fee is a
ARK.] SUN -LIFE ASSUR. ' CO.t UF. CANADA : V. CDKER. 603 part of ;a contract of insurance, and is . cost to . reiniburse . the. . plaintiff for expenses . incurred inenforcing..the contract. 'Appeal from Pope Circait Court ; A. B:-Priddy, Judge ; affirmed. Hays &-Smallwood and Pryor. & Pryor, for' appellant. • • K M. Priddy and Salo, T. icO. Tom POe,..for Appellee. • MeHANty ; J. Appellee recovered a verdict and-, judgment against appellant in' the suM Of $1;864.36 -with interest from January 4, 1933, , at 6 perscent.,'12: per cent: penalty and. Attofney '§ fee .of : $250, Alleging a breach of a certificate of insurance i gsifed, to him and a . group policy issued to hiS . employer, `MisSonii Pacific - Railroad' Company, dated November 1; 1931, by Which he' was -insured -against total . and . perthanent disability -, in which event appellant agreed. ;to him' '$36 ;per Month for 60 months.- • . The sum 'recovered wa the then Present . value of. the snm 'agreed to . be paid • monthly over•said •: period. nthhber of errors are assigned_ and argue.d 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 thepOliCy, November 1;1931; and that, .• therefore; he 'had 'no lealth or •abilit tO*-be".inSured: other words,. that a fraud was praCtiCed on.-appellantin obtaining insurance, since no physical exatnination.was required. This argument is based on the . fact. that appel-" lee suffered an' amPutation Of 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- physician§ that for a nuMbei otmontils' prior to- April; 1932, the 'date % he . finally*. quit work, and: from which he Claini g totaldisability, 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 gainfill occupation 'for , a long period of time prior to the issuance• q f the policy in-this , Case and subsequent to the loss' Of 'his lek in :1926,. • as also-since' NoYembei!" 1, 1931. 'Under this: state :of .facts?,-the
604- SUN LIFE --ASSUR. C0. -0Y CANADA V. -COKER. — 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 .-Nvhile such assurance was in full force and effect' and not liefore or after the term of insprance . 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 insuredis 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 argned that appellee failed to prove a breach of- the .Contract' of insurance, and that he cannot .maintainj. 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 wds made on_appellant to pay and perform .the contract, it :declined to do so, and in two letters to counsel for ap-. pellee stated,that their records showed the coverage to be canceled en 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 policy.-. z z Etia Life Ins. Co. v. Phifer, 160 Ark.
ARK.] 'SUN LIFE ASSUR. CO . OF CANADA V. COKER. 605 .98 254' S. • W. 335. - And,. as 'we said in 'Nation -al Life ct Aeó: Ins. Co. V. Whitfield, 186 Ark. 198, 535. W. (2d)' 10: " The breach of the 'contract; the appellant company's re.: fusal *to pay under its terms and denial . of any liability thereunder; * gave the insured the right to 'sue fill' gross damages for such- breaCh of contract, and the court has held that the measure of such damages is the present cash value of the , past and future . installments of the weekly indeMnity based on the life' expectancy of the insured:." So, when appellant denied liability beCause lapsed and re-- fused to perform, a present right of' action arose as for breach, and it was not necessary to await the expiration of the- six or three . months period. This issue was also submitted to , the jury, and its finding is against appellant. '(3). It is next contended that there is no proef that apPellee's employer,- the railfoad company, had paid-the; premium to appellant . on the 'group or Master poliCY. It i not disputed that- appellee.'s prennum-was paid to his employer . who 'deducted it -froth his*Wages, and twO premiums were paid by him after April. Without entering into a discussion a O f the question Of whether the einployer was the agent appellant in this regard, we are of the opinion that this assignment is without merit ; .that failure of the employer to . pay is a matter of defense, and no- such defense was interposed or suggested; Appel-lee's certificate was in good standing on April 28, -1932, - and appellant does not suggest that it lapsed or was canceled until two days later. Nor can we agree that .the insurance contract was not established. The certificate itself stated the terms and . conditions •of the . group policy in this regard, and the original policy was never in his TossessiOn; rior had'he 'access to it. The only other errer asSigned for reversal which we deem of sufficient Importance to -discuss is that of the allowance, of penalty and attorney's fee. It is argued that 'this is not A suit oni . the • coiitract; but .foi--damages' for breach, and that; therefore; the :statirte, : § 6155,.Craw-ford- & Moses' Digest, acies pot apply.. :We . have frequently held- that. the statute is highly penal' and should be strictly construed': National Fire Ins.-Co. v.-Knight,
185 Ark. 386, 47-.S. W..(2d) 576, We are of the opinion, however, that: the statute • applies,. and that .the court did. not err in assessing penalty • and attorney's , fees. By its denial of liability .appellant made it .possible for appellee to sue for the present value of all the monthly payments agreed . be paid, instead of suing for the past-due installments. The measure of damages . in either event is based on the contract. It is only the remedy that is changed by the breach. The appellee sustained a- loss . covered by ,the policy which *appellant agreed to pay monthly. When it refused to perform the contract by . making payment monthly, the law provide§ a remedy based on- the contr . act to avoid a multiplicity, of suits. In either event the statute applies ;. else the power would lie with the.insurance companies in such cases to nullify the statute by refusing-, to pay. and breaching the . contract. As said by the late Chief Justice HART in American: Liberty Ins. Co. v. -Washington, 183. Ark. 497, 36 S . . W. (2d),.963 : "The.statute. becomes a part.of the contract of insurance, and is -cost to reimburse . the plaintiff: for - ex• . penses .incurred. in enforcing the contract." Other assignments are . argued which we have carefully considered, but find them without . substantial merit. We think no 'useful purpose could be served by discuss-ink them, and to do- so would unduly extend this oPinion: The complaints made of the-giving and refusing to giVe; instructions - are covered in what we have already • said. Affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.