984 THE EQUITABLE LIFE ASSUR. SOC. V. BARTON. [192 THE EQUITABLE LIFE ASSURANCE SOCIETY V. BARTON. 4-4365
Opinion delivered July 13, 1936. 1. APPEAL AND ERROR.—Alleged errors which do not appear on the face of the record will not be reviewed on cross-appeal unless preserved by motion for a new trial.
ARK.] THE EQUITABLE LIFE ASSUR. SOC. V. BARTON. 985 2. INsuaANCE—EvIDENCE.--Where the evidence was that insured was suffering from a bullet in the marrow of the bone in his left leg; that the bone was practically destroyed and will grow worse; that the joint where the spine joins the pelvis will, in the future, become stiff; that X-ray pictures reflect practically the complete destruction of the neck of the bone, and that he will never be any better, whether he was totally and permanently disabled within the meaning of the policy was for the jury. 3. INSURANCE—TOTAL AND PERMANENT DISABILITY.—To be totally disabled within the meaning of an insurance policy insuring against such condition, it is not necessary that the insured should be absolutely helpless; he is totally disabled when he is unable to perform the substantial and material acts of his business or occupation in the usual and customary way. 4. EVIDENCE—EXPERT WrrNEssEs.—Farmers may testify as experts in,respect to matters wherein they excel. Appeal from Mississippi Circuit Court, Osceola District ; 0. E. Keck, Judge ; affirmed. Burch,. Minor. . & McKay and Wits Davis, for appellant. • James G. Coston and J. T. Coston, for appellee. JOHNSON, C. J. To compensnte an alleged anticipatory breach of two life insurance contracts each of which contained total and permanent disability clauses, tbis suit was instituted by appellee, Price M. Barton, against appellant, Equitable Life Assurance Society, in the Mississippi County CirCuit Court, the prayer of the complaint being for $23,500 as damages, reasonable attorney's fees, penalties and costs. By general denial the allegations of the complaint were put in issue. At the January, 1936, term of said court, a trial to a jury was had, but the trial court instructed the jury that there had been no renunciation or abandonment . of the contracts by appellant, and that, therefore, appellee could not recover damages or the present value of the contracts from which direction appellee prosecutes a cross-appeal to this court ; and on the issue of total and permanent disability submitted the question to the jury under instructions not here complained of. The jury returned a verdict finding total and permanent disability upon which a judgment was dulY entered for past-due installments, a review of which is sought by direct appeal. On the cross-appeal but little need be said. We are definitely committed to the rule that alleged errors -Which
986 .THE EQUITABLE LIFE ASSUR. SOO: v. BARTON% ' [192 do . nOt appear on the faCe of the record 'will not be reviewed onieross-appeal unleSs . preserved bY motion for A C n o eW „ tr ia . l . l■To Oa motion was filed.' ./Eina Life Ins. -%...,Martin, .ante p. 860, 06S. W. (2d) 327; Staey v. _PWards,.178 Ark.. 911, 12 S. W. (2d) 901 ; St. Louis. Sw. Ry.: Co. 'V. Alverson, 168 .Ark.. 662, 271 S.. W. 27. Moreover, the • conchision reached 'by-the : trial cOurt in respect- to the alleged renunciatiOn or • abandonment of the :eontract ., ,hy 'the inSurer seems tO cOnform to .our views this day expressed in Metropolitant Life Insurance Co.. y: : McNeil, ante: p. 978,96 S. W. (2d) .476.:. The paramount contention , presented on-direct ap-peal- is •.-to the' effect ', that the' testihiony adduced'• is insufficient to support di:6 jutY'S. finding of total and 'permanent , diSability; , at .td for ' this :rea gon the trial. -Court erred in refusing to direct a . verdict as • apPellant' quested. ' The. .deteilinination Of this : contention necessitates a review of the testimony adduced at sonie length. The.conti-acts. Of indemnify Which::were the 'basis of. this stht contain: 'the following pertinent definition of. 'total • and permanent disability "(A)' .Disability :is. total: when it. prevents: the. insured from. engaging in any occupatiOn or , perforMing: any. work. for . coMpensation of financial ; ; . •, : I, • : • • , • 'The testimony. ,adduced, bf appellee when VieWed.dii the light, most, favorablo to hiM,..as we. are required to. do under;repeated: opinions of this court, was tos•theeffect that :in May5 4932,.; he received' :Several -gunshot .WoundS:; two in: the:chest and, two; in. the hip, one of. whickpaSsed thrdugh:the:boWelS: As a consequence.ef said wdunds, appellee remained in a hospital four months ; 'he was removedi from : the hospital at 'that time in an; ambulance ; he .has been forced to:. remain under the care:of physicians up to the time. of the:trial; he is an uneducated man,,land:prior to his injuries made .his living expenses by farming; the only. business he knew ; he cOuld„prior, hislinjuries, oversee the cultivation on shares of' thousands of acres ; ,; this . necessitated . horseback 'riding .for from. ten : to' fifteen hours daily: . .Subsequent 'to apPel-lee's injurieS,: he , !has 'been . forced . to :desist share: cropping,. becatise he cannot oversee ; he cannot; because of his injuries; ride hOrseback,. :and cannot walk • More
Aldi.] THE EQUITABLE ' LIFE ASSUB.. SOC. V. BARTOI■i: 987' than 150 Yards at : a . tinie; he cathiot drive al . car . as .he did prior to his injuries because his leg beconies "numb" and "I . jfist haven't got tbe . use . of it,". in shifting gearsl. in such eircuinstances he is required "to hoist his -leg. with, his hand"; appellee cannot noW carry a' scUttle' of coal or a bucket of Water; . and is- unable' to load purchases! of Merehandise ihto.hi.8'ear; his • body is how nnbalanced,. due to sUid injuries, one leg . being 'one 'and three-fOurths. inches','Shorter than the other.- 'Abpellee . noW. Spends much . of his tithe in bed; he cannot perform' any . kind of' manual . labor.. In1936,. appellee ! was in the. field not thore than 'a time' or: two, and his fa . rming:operations are .nowl carried , .'on --by-tenants, who. own their own farming: equipment. .. • • • • Surgeons .of wide.and favorable reputation testified that appellee, is now suffering from . a .`. f latillet in the mar-!. row of the bone in his left leg," ! and it is inadvisable to. remove it ; • that X-ray pictures reflect that there..is.. f a gradual giving way or absorption. of the head or. shaft of• bone , and . 'heel' of . pelvis bone is •erodee'; that the bone is practically destroyed . and will: gradually grow .worse ; thatthe!joint. Where the spine • joins the pelvis will in Ale: future, get stiff. The 'surgeons further, .testified:that the. last X-ray pictures:made . in January, 1.936, reflect prac-, ticallythe complete destruction of the ! neck ,of the, bonp. They ! further testified, that appellee cannot. ride, horse-: back ; that he cannot' spread his legs ;,that duet° the,conditions,. described, appellee cannot do farm work,..And will never • be any . better. A great , massof testimony was . ,adduced by appellant tending to contradict, the. above, but since the jury has disregarded it, we. shallnot, enlarge this, opinion . with a. synopsis ,thereof. Under the facts recited above, was. the jun, warranted in„ finding appellee totully , and permanently . disabled?.. • Tinder •a 'contract of indemnity not materially . Ad- - ferent from the one under Consideration ! here; !We stated! the applicable rule'for ascertaining total 'and: lpernianent disability as follows • .`.` Our decisions simport the. 'vieNv that provisions in accident policies for inderimity,,in the. event the insured' 18 totally . or Wholly dis . abled, do . not require that• the accident shall render the insured • abs6: lutely helpless, but such provisions are : construed ., as:
988 THE EQUITABLE LIFE ASSUR. SOC. v. BARTON. [192 meaning such a disability as renders him unable to perform the substantial and material acts of his business or occupation in the usual and customary way." Travelers Protective Ass'n of America v. Stephens, 185 Ark. 660, 49 S. W. (2d) 364. The rule as thus stated has been approved and consistently followed in all subsequent cases. 2Etna Life Ins. Co. v. Davis, 187 Ark. 398, 60 S. W. (2d) 912; Mutual Life Ins. Co. v. Marsh, 186 Ark. 61, 56 S. W. (2d) 433; New York Life Ins. Co. v. Farrell, 187 Ark. 984, 63 S. W. (2d) 520; see, also, 'Etna Life Ins. Co. v. Martin, ante p. 860, 96 S. W. (2d) 327; iEtna Life Ins. Co. y. Person, 188 Ark. 864, 67 S. W. (2d) 1007. Compare Missouri State Life Ins. Co. v. Snow, 185 Ark. 335, 47 S. W. (2d) 600. The rule of law for ascertaining total and permanent disability is concise and without complications, but the difficulties arise out of the facts in respect to its application. The Snow and Person cases cited, supra, relied upon by appellant are fair examples of these difficulties. It is self-evident that each case must of necessity rest upon its peculiar facts and circumstances, and no decided case, when tested by its peculiar facts and circumstances, can be logically said to control another case. Even so in the instant case, we are unwilling to substitute our judgment for that of the . jury under the peculiar circumstances of this case. That appellee is seriously and permanently disabled is established by the undisputed facts; and that he will never recover is a reasonable conclusion to be drawn from the facts adduced; that • he is not now and will never be able to perform the substantial and material acts in respect to his farming operations, his only familiar vocation, in the usual and custoinary way is a fair and reasonable conclusion deducible from the testimony, and is well greunded therein. The facts of this case come more nearly within those stated in Mutual Life Ins. Co. v. Dowdle, 189*Ark. 296, 71 S. W. (2d) 691. It follows from what we have said that the trial court was correct in submitting this question of fact to the jury for their consideration .and judgment, and its findings cannot be said to he without substantial support in the testimony.
ARK. I 989 The conclusion stated renders it unnecessary to discuss the contentions in respect to partial disability and kindred subjects. The only remaining . contention on direct appeal relates to the admissibility of farmers testifying as exPerts in- respect - to .the duties incumbent upon them as such, and the necessary physical abilities of one to accomplish such results. In the early case of Arkan,§as Midland Railway Co. v..Griffith, 63 Ark..491, 39 S. W. 550, we rec-. ognized the• capacity of a farmer to teatify as an expert in respect to matters wherein he excelled, • and no different status is presented here. This contention therefore 18 withOut 'substantial merit.- - No error appearing, the judgment is 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.