1106 METROPOLITAN LIFE INS. CO. V. • JONES. [192 ' METROPOLITAN LIFE INSURANCE COMPAN .1" V. J'ONES. 4-4323
Opihion. deliVered on rehearing October 5, 1936.. INSURANCE.—Evidence held sufficient to support the verdict of the jury on the 'question of total and permanent disability: 2. IksifaANCE.—The fair intention of the parties, in entering into • diSability insurance 'contracts, is that the insured shall receive indemnity when he is so disabled as to prevent him from engaging
ARE:. METROPOLITAN. LtiFE. INS. CO . V.. JONES. 1107 .in, the. , work, for which he, is . fitted without injury to, himself, ,and if by . reason . of his disability he iS . unable to :perform . all of ihe 'Substantial and material' act's a the Work or bil'sineSs' in ' which he " iS eiikaied iri t the VStial and .cnstoniaiw . Way, he ' is totally .ifiSabled. 3.: ' , IIiisurt-ANcE. Under a griMp. pOlicy . providing that "upon 'receipt ,at- the lhorne . office * *.* of :One proof that .any, employee Iil'i!,has *come , . totally and pernianpntly . disaMed , the company will; pax equal monthly instailMents *. The first . monthlY inStallthent • wilf be P ' aid uPOn receiPt of:the' preof ' 'of* total Ad' p'ellnianent disability,' proof Of 'disability l iS' not' a 'Condition preeeden yto fthe : fiking':of• liability, but is only a prereqUisite to. the'institütion :of •an.action to . recover , for, the liability ; and , insured . .may, under .such a policy, recover from , date of . disability, : and not . merely ;from date of receipt of Proof by the comPany. . , Appeal from Ouachita Circnit .Court,„Second.,-Pivi7 sion ; A., L. Bnon,, bel*, : Speciali .Judge , ; reyersed :and, dis,- missed without prejudice.: Cpl , e Pqtes,. Bffrrowi& ,Chotm
ing.„904 , 9han,.S.iffor. dygodwin::& . Gaitgh. on,and $treett,4 for . appellant. , „ . . • appellee. / • ,_BuThtR, J..:; The appellee,. Jewell ,Jones,iwas :inSured with the. appellant, , Metrepolitan: . Life Insurance :-Corn, patiy*as:An employee ;of the George-.85:•he•rard Paper Company,- of ,'Camden, Arkansas, . a: subsidiary cof : the International- Paper Conipan•, : under .two .Certain -.group policies. One,: No.18640-; ,was for life insurance and for monthly indemnities in the, event, of :total and pernianent disability: ; -The - cither . insurance, was:under a certificate nufabered 187011 - providing for ,weekly.;indemnity., Ter tetal ,temporary :disability. :1Beth of : theses policieS 'were iii force .in: November; 1932; t. which Anne came, totally'disabled by. reason ' .of " skin eruption Troth ceMent"irritation. The. insurance :cdnipanyi settled:with the insured:for' This : About September..28,; -1934; the:insured pap.cle..c1 4im for total, and :permanent disability benefits under; his_ ceilificate, No. : 1864G;and . for, the same •disability for , which .he, had. /received compensation tinder the claim that ,it was:temporary. ; „On November 1, .193, Appellee: filed: suit ;to , oeover for _his total. and , ,permanent dis , abiity. 11-1Q1.4ppellant tiled A, motion, tp , -require, appellee te , the,,daW and
1108 METROPOLITAN LIFE INS. CO . v. JONES. [192 character of proof, if any, furnished, and also a motion to abate and dismiss because no such proof had been furnished. These motions were overruled, whereupon an answer was filed denying the total and permanent disability of appellee and further denying that any 'notice or proof had been furnished on*the isSue relating to total and permanent disability. The . case . was . submitted to the jury_on these issues and a verdict was returned in favor of the appellee in the sum of- $1,366.44. The court thereupon assessed a penalty of . 12 per cent. on the amount and an attorney 's fee in the sum of . $ 250. It is insisted by appellant for reversal and dismissal of the case that the verdict of the jury finding the.4pel-lee totally and permanently disabled 'was without substantial evidence to support it.. It is trite the proofs made in 1932 claimed that the disability was temporary, and there is evidence to the effeet that since the payment by the insurer of the claim for total temporary disability appellee has continned to work at manual labor in his usual and- customary manner with no : Signs .of being incapacitated to perform that kind of work. On the other hand, there is , substantial testimony, to, the effect that whatever work he- has performed •since. November, 1932; has been-with extrenie discomfort. The evidence justifies the inference that appellee : and his physicians 'were mistaken in November, 1932, when-the disability was thought to be only temporary, and that instead it has continued and appellee is now; and has *been; in. such physical condition as- to render it dangerous for him to engage in heavy: Manual labor. Appellee . is a common laborer, .not fitted to make a living in any other way.. The evidence was therefore sufficient- to support the verdict of the jury on the question of total and perinanent disability. The fair intention of the ' . parties when entering 'into contracts like the . one under ' consideration . is that the insured shall receive indemnity when he i so disabled as to prevent him•from' engaging in 'the work for Which he is . fitted without injury to hiniself, and, 'if by :r ea son 6f- his disability he is unabl6 to *perform all Of the sub-Stantial- and material acts of- the work • or btSines5 in
ARIC:] METROPOLITAN LIFE INS. ' CO. v. JONES. 1109 which he is engaged in the usual and customary way, he is totally disabled. lEtna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. (2d) 310; Mutual Life Ins. Co. v. Marsh, 186 Ark. 861, 56 S. W. (2d) 433. • It is next contended that the . action is 'premature and the verdict of the jury excessive. These' contentions are based . on the contract et inSuranee which provides : "Upon receipt at the home office in the city of New York of due proof that any eniployee * * has become totally and permanently disabled,* . * * the company will pay equal monthly installments * * *. The firSt monthly installment payment will 'be paid upon - receipt of the proof of total and permanent disability * *•*."' In answer to this contention the appellee urges that as early as November, 1932, the appellant had knowledge of his disability, and ample . opportunity to investigate this claim before suit was 'brought. He cites, and relies upon, the . cases of Hope Spoke Company v. Maryland Casualty Contpany, 102 Ark. 1, 143 S. W. 85 ;, 38 L. R. A. (N. S.) 62, Ann Oas. 1914A 268; Mutual Life Ins. do. v. Marsh, 188 Ark. 861, 56 S. W. (2d) 416, and the yecent case of Mutual Life . Ins,.Co. v. Moil-is, 191 Ark. 88, 83 S. W. (2d) '842, announcing the doctrine that except in cases where the. proof of-. liability is made a Condition precedent, it is the existence of disability.that fixes liability mid.not proof thereof. . These, Cases have io applicatidn to the questions involved in the . .case at bar for the reason . that there is no contention that the proof of disability is a . condition precedent to the fixing of liability, bat only that it is a prerequisite' to the institution of an action to . recoVer fOr the liability.. . It is a fact that _appellant had notice in November, 1932,. that the appellee was . disabled,-but there was notice- that his disability, was pernianent. Appellee calls attention to the claini signed by him on November 25, 1932, to which-is appended the statement by Dr..Robins, and in which claim reference' is-made to the poliey inSuring against total and permanent disability. No significance can be attached to the reference made = td the policy
1[ETI1OEOLITXN LIFE INS. CO . V. JONES. [192 under which the appellee would be entitled, if totally and permanently disabled, to monthly benefits because no claim was made to the. effect that the insured was totally and permanently disabled. The claim was treated by both the insured and insnreras one for total disability temporary in l its nature and settlenient was made on that basis y The . prod , is clear that the first time the insurer was notified of , any . claim for permanent disability was by letter. of appellee's attorney dated September 28, 1934. Mier . some correspondence the insurer advised the attor- ney . on October , * 30, 1934, .that appellee's insurance had expired,..and,..without waiving any rights it might have, enclosed . blanks for- making ,. proof of disability claims. There . is no contention Made, either in proof or in argument; that said blanks were not received, but, instead of:forwarding prod Of disability as required under- the ternis-of the policy, 'appellee filed this suit. * • 1-:tnder the language - of the policy the appellant te-StriAed 'the time in Whieh : Payments should begin to be Made . nntil. the . receipt , oT proof of permanent disability.. Thf's is similar to 'the dOatract involved in Atla's Life Ins. CO,: v. Wells, 187 Ark.' 979,. 63. S.. W.* (2d) 533. In . that eaSe We quoted with 'approvarthe rule announced in 1 C4., • 107, '108, 'as folloWs: "By the weight of authority, if is' • giontid_ tor :. abaienient . that the action was* prema-tiireb c 'bronght, even ' thOugh the right of action has Ma-'tnre'd befOre*.trial . aS; M most • jurisdictieps, where an aetiOn * is 'brought . before maturity on a note or other deht';'Where . the tinié for. payment Of a noth or other debt haS 'been:extended by 'agreement, and:an action is bi-onght befOre eXpiration of *the period of the extension; where an aefion is brought befOre the happening of an event upon the happening of which the right to conunence the actionis to acerne;- and in many other.like cases.!' In that: case we held; following-the afithority cited, that a snit wasi premature where • the policy 'provided for pay-mentsJo- hegin at :a certain time after receipt of proof .disability and suit was filed before that time elapsed, Oi en thongh the *right of action- might have matured be-f or e. the- -trial.
ARK.] • 'The . evidence touching the disability of the appellee appears to have been fully de*"‘'''eloped and it *might 'iaPpear that no useful purpose could be served • by "reVerSal of the judgment, but, under the a.uthority. of. Atlas LiferIns. Co. v. Wells, supra, which is supported by the weight of authority, a dismissal of the ease . becOnies. " neeessary. This action, however, doe's not * 3i'ji.idice the right .of the appellee to bring another . snit . without niaking further proof. of disability since the appellant. is *now fully* apprised, "of what the proof Would. g how.. Iii view of :the possibility . Of another trial, We deem it:appropriate , yi state that the contention of apPellant that disabilitYlpay-, ments are to ; be, computed, from the time of . receipt* of Proof . rather .. thani , from tpe . happening of the" disability is erroneous and is not . suPPorted . by"the pase . of Mutual Life. Ins. - ..111(ish,.sn P ra. . Under. the -teinaS. of *the contract of insurance the apPellee,,if "totally and :perrria-nently disabled, would, be &de, the ,Stiptilafed Monthly benefits . from:the ; . haPP . e . ning : of : the : disability and . not from the date of receiPt of proof ' as . cOntended by: apr pellant. " It follows that , the petition. for ; rellearing. should be granted. The 6pinto , n, delivered June 8, 4_936,, :is .tliere1 fore withdrawn, the above and foregoing is .substituted therefor, and the judgment is reversed„and the case ;cr.'s, missed without prejudice.
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.