474 AMERICAN 'NAT'L INS. CO. V. FREEMAN. [192 AMERfoAN NATION . AL INSURANCE . COMPANY V. FREEMAN. .44239 • . Opinion delivered March 23, 1936.. . had a pOliCy in aPpellant ComParik b which it *Was prOVided . that in case -of tbtal disability the company would, : on, due :notice and proof of :dis,ability,• waive further' payment of premiums. ., Under , sueh .a policy no liability . arises until proof of disabiliy is made. Appeal , : from Sebastian 'Circuit :Court, Fort Smith District ; J. Sam Wood, • Judge ; reversed. . Daily, (0 . Woods, for appellant. ,James . Seabem Holt, ,f or appellees., Humi, inio y s; j. This is. a suit bY the beneficiaries to rec s over‘the .face : value of' a 'disability and life insurance policy issued by appellant to Abba R. Freeman on March 19, 1929, ..upoil 'which the insured paid the initial ,yearly premium of.•$68.78,. but 'never paid any subsequent pay-inrent during' his lifetime. He died in 1932 with tuber-
ARK.] AMERICAN NAT'L INS: CO. FREEMAN. 475' culosis, which developed in ,December, at.: which time he becanie totally disabled, on aCcount of said •disease.. After he became totally disabled in . 1929, he.never notified appellant-of his disability or made proof thereof during the remaining :two and .one-half years of :his. life,: and :after his death, his beneficiaries, gave, no notice or: made , proof ■ of, his: disability, and .made, no. demand, for the payment of the face of the policy until they instituted this suit in:1934 : in the-circuit court of Sebastian County, Fort Smith District. : • • r.' • .: .. • , • The complaint set out the application and:polidy!in: full as a part thereof in addition • to pleading the facts, above detailed. .• : ,: • :: :•. Appellant filed a demarrer : to the•coniplaiiit, which was Overruled by the court.on October 24,, : 1935,. over its objection and exception, and, refusing to plead further and standing upon its demurrer, the trial court rendered judgment in favor of a,ppellees for the face amount of the policy and costs and an attorney's fee of $300, from which is this appeal.' - The policy contained the following provisions : . "Total pemanent . Disability.. ; "Subject to the . provisions hereinafter while this, policy is in full. force and before default in paymerit of premium ,hereon,. if insured, prior to, attaining the„age of -60:years, shall-furnish _due proof to company•at home office that insured 'has . become . totally permanently . 'disabled' by irremediable bodily injUry Or incUrable:diSease not exis , fing at ,tlie date. ' Of 'i Sc* Sue hereof, So inSirred is, and:, pr s,umably will be77Permaneutly,--f,ontirm'ou:s)ynd wholly prevented thereby for life from performing,any work for . compensation,'gain or Pro : fit, or from .following any' gainful occupation,..and 'thdt . disabilitY :ha g then existed for not . less than ni.n . dtydays , 'cO m pa y n -W i ll . 'grant following benefits: „ . "1.: Waiver 'of Premium. -The company will-during the . continuance of Such-disability; waive paYnient of each premium as it thereafter , hecomes 'due to the e'iteilt of annUal premium . of $68.76, oommelicipk With PreiniMil first due after receipt of due proof of .disabilityi."
476 [192 The majority of the court interpret the above provisions • of -the policy to mean that no liability arises thereon until notice and proof of disability is made, and that the payment of premiums is not waived until such notice and proof is made. They base their interpretation upon the construction given the clauses of the policy in the case of New Y ork Lif e Insurance Company v. Moose, 190 Ark. 161, 78 S. W. (2d) 64. The Chief . Justice and the writer interpret the provisions of the policy in the instant case to mean that liability arises thereon when the disability occurs and that notice and proof of disability is not a condition precedent to liability, and our reasons therefor may be .fonnd in the dissenting opinion in the Moose case, supra. The judgment is reversed, and the cause is dismissed.
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.