466 AmER. NAT. INS. CO . v. HASTAIN. - [188 AMERICAN NATIONAL INSURANCE COMPANY V. CHASTAIN. 4-3241 Opinion delivered December 18, 1933. 1. INSURANCE—WAIVER OF CONDITION OF POLICY.—Evidence that an insurer in a group policy, in making out its claim insuring the firemen of a city, included a fireman's name with notation that he
ARK.] AMER. NAT. INS. CO . v. CHASTAIN. -467 had been retired on a pension, and that in remitting the premium the fireman's name was included among those covered by the policy, although on the pension roll, held to sustain a finding that the insurer waived a provision in the policy excluding firemen not working full time from benefits of the poliey. 2. INSURANCETOTAL DISABILITY.—TOtal disability within a group policy means a disability rendering insured unable to perform all substantial and material acts of his business or execution of them in the customary way. 3. INSURANCE—PROOF OF DISABiLITY.—In - a suit on a group policy which provided that "due proof" of total disability must be furnished, inodifi6ation of insurer's requested instruction that proof should have been made "within reasonable time" to require "due proof" was not error. Appeal from: Pulaski Circuit Court, Third Division; Marvin Harris, Judge ; affirmed. Coleman ,ce Riddiek, for appellant. John L. Sullivan; for appellee. HUMPHREYS, .J. The issues involved on this appeal are : first, whether the group policy issued by appellant to the city of Little Rock protecting hei firemen from total disability expired as total disabilitY protection to appellee when he was placed on a pension by the city, or whether it continued in full force and effect thereafter ; second,. whether . the evidence was sufficient to warrant the jury in finding ; appellee was totally disabled within the meaning of the policy ; and, third, whether sufficient notice of total disability was given to appellant by appellee. . ; • . . The first two issues . , were submitted to the jury under instructions the correctness of which is not questioned by appellant, and tlie last under an instruction which appellant claims was erroneous. The policy in the instant case insured the lives .of the firemen and policemen Of. the city .of Little Rock for five years beginning Deceiniber . 1, 1927,, premiums payable annually, the first annual- premium being $4,249 with a provision therein providing for , the . payment of .$2,000 to appellee if said appellee : " (1) has Suffered subsequent to the date of the issirance of the policy for a period of at least 6 mOnths total diSability and that due proof is furnished the eompany -; (2) arid that the said
468 AMER. NAT-.-- INS. CO-. V.-CHASTAIN. 1188 disablement began. before the person injured had at-tainea . • the Age of GO years. ; (3) and that, if proof of total- disablement is furnished, the said total disablement musf be shown to be such as to justify the presumption - *that it would continue throughout the entire subsequent lifetime of the said person and during that time wholly prevent the said person from pursuing any occupation for wages, compensation, or profit." It also contained the following provision: "It is agreed that employees otherwise eligible but who are not working for full time and for full pay on the effective date of the policy applied for are to be 'excluded from insurane.e coverage until the date on which they return to service for full time and for full pay." The application contained the names of at least four firemen who had been retired on a pension, and who were not working full time and on full pay, but they were included in the group policies as beneficiaries. • (1) It appears from the record herein that, on March 1, 1930, appellee was retired on a pension by the 'city. Appellant argues that, under the terms of . the policy set out above, its liability to appellee on account of total disability terminated when he ceased to work full time on full pay, or, to be more exact, on the date he was retire,d on a pension. It is -disclosed by the -record heteih that appellant, in making out its claim for premium§ due December 1, 1931, on the group policy, in: chided appellee's name with the notation that he had been retired on pen§ion, and it also appears that in remitting the premium due oh that date by: the city, appellee's name- was included among those covered by the policy, although on a pension roll. This testimony was sufficient to sustain the finding of the jury that ap-Tenant had waived the provisions of the policy protect--ink. only those who were working full time and* for full wages. • We cannot agree with learned counsel for' apl -pellant in their view that the evidence is insufficient to sustain ihe verdict of the jury to the effect that appellee . .was iari& is totally disabled within the meaning of 'that term..• 16.§ used in the policy. -The construction
ARK.] A,MER. NAT. INS. CO . v. CHASTAIN. 469 :upon • the term "total disability" as used in the policy • mOalis such disability as renders the policyholder "unable to perform all the substantial and-material acts :Of -his business or the execution of them in the usual or customary .way." 2Etna Life Insurance Contpany . v.. Spencer, 182. Ark. 496, 32 S. W. (2d) 310; Mo. State Life Insurance Co. v. Barron, 186 Ark. 46, 52 S. W (2d) 733. According to the testimony introduced .by appellee, he has been unable . to do any work since Augu g t 3, 1929, -on account of tuberculosis. - The. jury found this to be the fact from. conflicting teslimony under correct in- structions submitting the issue, and their finding is conclusive on appellant. It was a jury question and not one for the court. . Missouri State Life Ins. Co. v. 'Johnson, 1.86 Ark. 519; 54 S. W. "(2d) 407 ; New York . Life Ins. Co. v. Farrell, 187 Ark. 984 . , 63 S. W. (2d) 520. _ (3) The group policy, contained conditions to the effect that due proof must be furnished appellant of total disability On the part of appellee. Appellee filed his proof of total disability on December 26, 1932,. on 'account of having tuberculosis, which he contracted 'in 1.929, during the life of the policy. As appears , from the condition in the Policy above- referred to, no tiine was specified in which proof was reqnired tO be Made. Based ttpoh this ' fact, appellant Contends mat the proof Should have been made Within a reasonable tithe; and' requested an instrnction 'to that effect, which the . court refused to give, over its objection. and exception: The court modified the' insIruetion so 'as to follow the language of the policy providing that'due Proof should be Made Of the disability . by Appellee- before he. could 'recover. Appellant objected and excepted to the court giving the instruction as modified. The court was within the law in Modifying the inStruction -and in refusing to give it in the form requeste.d by appellant. It- was said-bY thiS court in the ease -Of Soverei , an Woodmen' of the WOrlil T.' ' Meek; 185' Ark: 419; 47 S. W (2d) 567, that' f'under a benefit certificate proViding for a recovery if ins-di-ed. , should -safer b6dily "injury and furnish satisfacthry proof of total -. d . isab . ility, held 'the. right to- r . eceVe . r:de- pended upon insiired's' total diSability during the fife' of
the certificate, and not upon the receipt of the proof of. total disability, no time being fixed in the policy for making such proof." • Appellant has called our attention to certain. testi- - molly which it alleges was inadmissible, but we cannot agree with, it. We think the • evidence referred to was material to the issues involved. No error appearing, the judgment is affirmed.
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