133 Ark. 348 | Ark. | 1918
The American Life & Accident Insurance Company, hereinafter referred to as the company, issued an accident indemnity policy on September 15th, 1915, to E. N. Walton, hereinafter referred to as the plaintiff. On October 10th, 1915, plaintiff was returning from a boat landing on the Mississippi River to his home in Arkansas City, and., in order to cross a railroad track, which, ran parallel to the levee upon which plaintiff was walking at the time, he jumped from the levee on to a stationary flat car loaded with logs, a distance of four or five feet, hut on account of the wet and slippery condition of the logs, plaintiff slipped and fell to the ground, a distance of twelve feet. As a result of his fall plaintiff sustained very serious injuries, the physical, visible evidence of which consisted of a sprained wrist and a swelling in the abdomen. There was immediate pain in the stomach, accompanied by nausea. Immediately following his accident plaintiff worked a few hours, at night, but was unable to perform a regular day’s work. Plaintiff was an electrician, and continued to do some work at night for a week or ten days, but was forced to quit work on account of the increasing pain in his stomach, since which time he was unable to do any regular work until the 21st of February, 1916, when, as a result of the accident aforesaid, he was operated on for what is known as mobile caceum, this being an operation to attach to the abdomen the lower bowel, which had become loosened from its regular place by reason of the accident. The operation was apparently successful, although the plaintiff was left in a weakened and run down condition, and he testified that even up to the time of the trial he had not been restored to his normal condition.
Plaintiff was taken to the hospital on January 3rd, 1916, where he remained until the 24th of March, and after being taken home he was confined to his bed for six days and to his home fourteen days.
The company denied any liability under the policy, - and this suit was brought to recover, upon the theory that a total disability had been sustained, during the time for which a recovery was asked and judgment fox penalty and attorney’s fees w.as also prayed.
The application for the policy contained the .statement that the plaintiff was in sound and healthy condition, and that he had never been ruptured; when, according to his own .admission on the witness stand, he had had dhills with the accompanying fever, and he had been ruptured when a child, and had been operated on for it in 1903, and in 1906 he had had performed a preventive operation for rupture on the opposite side. These operations were completely successful. Plaintiff also testified that in 1911 he had been thrown from a horse, from which he sustained an acute attack of indigestion, and prior to that time he had been struck on the head by a pole as he was getting off a street car, for which accident he was treated by a physician, and in 1911 he had an X-ray examination made of his head. It was also shown that as a boy he had broken his wrist.
However, prior to the taking out of the policy sued on, plaintiff had recovered from these mishaps, and none of them apparently contributed in any manner to the trouble which sent him to the hospital. Plaintiff’s trouble was first diagnosed as appendicitis, and he was operated on for that disease on January 4th, 1916; but this operation did not relieve the pain, and a second operation for mobile caceum was performed oil February 21st. This operation, as stated, gave comparative relief, and started plaintiff on the road to recovery. The surgeon testified that the mobile caceum was congenital, and that the plaintiff did not know of its existence and that its existence might never have been made known but for sudh an accident as plaintiff sustained, although its presence made the plaintiff peculiarly susceptible to injury from such an accident.
The company now denies liability under the policy upon the ground that the statements set out above in the application were false and that in the application these answers were warranted to be complete and true and material and binding on him, whether written by himself or by the agent of the company.
“A warranty being part of the contract itself as contra-distinguished from a representation, which is a mere inducement to the contract, must necessarily appear in the contract itself. In Mutual Benefit Life Ins. Co. v. Robertson, 59 Ill. 123, this court, on page 126, said: ‘A warranty is in the nature of a condition precedent. It must appear on the face of the policy, or if on another part of it or on a paper physically attached, it must appear that the statements were intended to form a part of the policy, or if on another paper, they must be so.ref erred to in the policy as clearly to indicate that the parties intended them to form a part of it. A warranty can not be created nor extended by construction’ — citing Reynolds on Life Insurance, 85 et seq.; Campbell v. New England Ins. Co., 98 Mass, 381; Burritt v. Saratoga Ins. Co., 5 Hill 188; Jefferson Ins. Co. v. Cotheal, 7 Wend. 72.
“Defendant in error contends that the application in this case is a part of the policy. The only language in the policy that makes any reference to the application is found in the first sentence of the policy, where it is recited: ‘In consideration of the warranties and agreements in the application for this policy and of $25 does hereby insure Robert Spence, of Chicago, State of Illinois, by occupation a collector publishing house,’ etc. It will be observed that the reference here to the application does not expresssly make it a part of the policy; nor does such, effect necessarily follow by á fair construction of the language, even if a warranty could thus be imported into the contract. The doctrine of warranty, in the law of insurance, is one of great rigor and frequently operates very harshly upon the assured, and courts will never construe a ’statement as a warranty unless the language of the policy is so clear as to preclude any other construction. As was said by Justice Gray in McClain v. Providence Savings Life Assur. Soc., 110 Fed. Rep. 80: ‘The practical operation of ’Such literal warranties is so often harsh and unfair that courts require their existence to be evidenced clearly and unequivocally, and are not inclined to allow it to rest upon a mere verbal interpretation where a rea--sonable construction of a contract as a whole will authorize a different meaning. All reasonable doubts as to whether statements inserted in or referred to. in an insurance policy are warranties or representations should be resolved in favor of the insured. ’ ’ ’
After a further discussion of the principles involved, the court announced its conclusion as follows: “Certainly a mere recital, such as the one in this policy, falls far short of an expressed stipulation that the application is made a part of the policy, which, under the law, is necessary before it can be so' treated. The application itself cannot be considered in determining the preliminary question whether it is a part of the policy. This fact must affirmatively appear from the policy itself. It is only after it is determined, from a consideration of the language of the policy, that the two papers constitute the contract that the application can be resorted to. The application not being a part of the contract, any statements contained therein are mere representations, and not warranties. (May on Insurance, Sec. 158). As such, they may avoid the policy if found to be false and material, within the legal meaning of these terms.”
The doctrine of this case was expressly approved by this court in the case of Metropolitan Life Ins. Co. v. Johnson, 105 Ark. 101, 105, where, after approving the doctrine of that case, this court said: “It follows that, the application not being a part of the policy, any statements contained therein are representations and not warranties. A warranty differs from a representation in creating an absolute liability, whether made in good faith or not. The reason is that a non-compliance with a warranty operates as an express breach of the contract, while a misrepresentation renders the policy void on the ground of fraud. The questions propounded in the application, as set out in the statement of facts, call for answers founded oh the knowledge or belief of the applicant, and in such cases a misrepresentation or omission to answer will not avoid the policy unless wilfully or knowingly made with an attempt to deceive. 25 Cyc. 801, and cases cited. See also Reppond v. Nat. Life Ins. Co. (Tex.), 11 L. R. A. (N. S.) 981; Aetna Life Ins. Co. v. Rehlaender, 68 Neb. 284, 4 A. & E. Ann. Cas. 251."
What we have just said disposes of the company’s contention that the right of recovery is governed by the provisions of Paragraph B, which reads as follows:
“Partial Disability.
“ (B) Or, if such injuries shall immediately, wholly and continuously, from date of accident, disable and prevent the insured from performing one or more important daily duties pertaining to his occupation, or in the event of like disability, immediately following total disability, or in event of total disability not immediately following injury, but within fifteen days of date of injury, the company will pay the insured for the period of such disability, not exceeding two consecutive months, one-half of the rate above specified for the total loss of time; provided, the combined period for which indemnity shall be paid for total and partial disability described in paragraphs (a) and (b) hereof shall not exceed twelve consecutive months. ’ ’
It is true, as stated, that the trouble developed by the accident culminated in the operation which was performed more than fifteen days after the date of the injury. But the testimony shows that during this interval of time the plaintiff was doing what he could to avoid the consequences of his injury and that, while more than fifteen days elapsed before the operation which was finally performed was performed, still during that interval the plaintiff Was so completely disabled that he did not follow 'his regular occupation during all of any day.
For the meaning of the word “immediately, ’ ’ as used in this connection, see the case of Continental Casualty Co. v. Ogburn, 57 Sou. 852, which is annotated in Volume 34 Am. & Eng. Ann. Cas. at p. 377.
The purpose, no doubt, of this provision was to prevent imposition upon the company by malingering or simulating an injury which did not exist, and the company, in this manner, had undertaken to guard itself against any such fraud or imposition by stipulating that there should be some visible marks on the body evidencing the injury. This provision, however, cannot be construed as meaning that all of the injuries sustained must be evidenced by external or visible marks on the body. It would be unreasonable to so construe this policy as to grant immunity to the company against any injury which was not so evidenced, if there were visible and external marks on the body to show that an injury had been sustained. It is sufficient if- there be some visible or external marks which evidence the injury, although the extent of the injury can not be determined from the -visible marks alone. The evidences which exist here were the sprained wrist and the swollen abdomen, and met the requirements of the policy that there shall be a visible and external evidence of the injury sustained.
Finding no prejudicial error, the judgment of the court below is affirmed.
