FRANKLIN LIFE INSURANCE COMPANY V. BURGESS.
4-9654
Supreme Court of Arkansas
January 14, 1952
245 S. W. 2d 210
Appellant calls attention to Fleener v. State, 58 Ark. 98, 23 S. W. 1, contending it calls for a reversal of this case. There a conviction for embezzlement was reversed because the lower court refused defendant‘s instruction which stated, in effect, that the mere failure to pay over money at the proper time would not, of itself, constitute embezzlement, and that it must аppear that the defendant retained the money by attempting in some way to conceal it, or by falsely and fraudulently keeping his accounts, etc. Defendant cannot take full advantage of the Fleener case here for the reason that no such instruction was requested and, in fact, no exceptions were saved to any instructions. Had the situation been otherwise we still think there is here sufficient evidence for the jury to find it met the requirements of the instruction mentioned above.
Finally appellant insists it is essential to the crime of embezzlement that there be a fraudulent intent on the part of a fiduciary to convert the property to his own use, and that no such intent is shown here. It is true that intent is an essential part of the crime of embezzlement, but, as stated in Gurley v. State, 157 Ark. 413, 417, 248 S. W. 902, 904, intent may be inferred [by the jury] from the act of wrongful conversion. To the same effect is Heath v. State, 207 Ark. 425, 181 S. W. 2d 231.
Affirmed.
Mahony & Yocum, for appellee.
MINOR W. MILLWEE, Justice. Appellee, John P. Burgess, recovered a verdict and judgment against appellant, Franklin Life Insurance Company, in the sum of $1,100 for eleven months total disability under a health and accident insurance policy, together with twelve per cent penalty and attorneys’ fees.
The policy was issued in 1946 pursuant to an application stating appellee‘s occupation as “Mgr. Burgess & Son Dry Goоds and Groceries” and his exact duties as “Managerial & Clerical“. At that time appellee was a clerk in the Burgess store at Strong, Arkansas. The store handled groceries, dry goods, feed, fertilizer, hardware and other items usually carried by a general store in a small town. As a general clerk appellee worked in all departments of the store. In assembling and selling merchandise he was required to load and unload such articles as farm implements, fertilizer, feed and other heavy items.
Appellee moved with his family to Conway, Arkansas, in November, 1948, and put in a neighborhood
Prior to his injury appellee did practically all of the work in connection with the operation of the store except the boоkkeeping which was done by his wife. The store building is 22 x 40 feet and adjoins a six-room dwelling occupied by appellee and his family. Merchandise is kept in shelves which extend up eight and one-half feet from the floor on one wall and six feet on the opposite wall. A ladder is used in removing articles from the higher shelves. Appellee handled a general line of groceries, bottled drinks and other articles usually carried in such stores. The canned goods and other items such as sugar, potatoes and flour were delivered to the store in cases, cartons and sacks weighing up to one hundred pounds. These were handled by appellee in distributing the merchandise to the shelves and other places about the store where it was kept for sale. Appellee opened the store at six a. m. He did all the janitor work, buying, most of thе selling and all the heavy work, including the transfer of cases of bottled drinks to and from a storage room.
Following his injury, appellee resumed such light duties as he was able to perform around the store about
Dr. F. L. Irby testified on behalf of appellee as follows: “Q. We have еnumerated to you, doctor, what he did before and after his injury, and you have told about the things you thought he could perform; would you say there are any substantial part of his duties that he can perform in the usual and ordinary way that he performed them before he lost his leg? A. No, sir, the regular duties that he performed in the grocery business before that, he can‘t do it now; there are some little things that he might be able to do, but the regular duties, he is unable to do them today. Q. I am talking about, now, doctor, the things that he can do now, can he do those in the usual and ordinary way that he did them before he got hurt? A. No, sir.”
On cross-examination the doctor testified: “Q. In general, he could do any kind of work about that store that didn‘t involve manual labor, lifting heavy articles, that didn‘t require him to be engaged in it for any extended length of time? A. He could do anything that he didn‘t have to walk аnd use his hands to do; if it was something that he could show, or tell them what to do he
Upon being asked to give his opinion as to appellee‘s disability, Dr. L. G. Fincher stated: “We assume that when a man can‘t do the usual duties of his occupation he becomes disabled. Now, you specifically mention—you specify certain things hе did—I have worked in the same kind of store that he has, and I know exactly what his duties are, and he can‘t do the work in that store. I could admit right quickly that he might have it done, but he can‘t do it, and that‘s why I assume that he is disabled. I just feel that he can‘t do his work as he did it before his injury.”
At the outset appellant recognizes the rule followed by this court in numerous cases as stated in AEtna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. 2d 310: “Total disability is generally regarded as a relative matter which depends largely upon the occupation and employment in which the party insured is engaged. This court has held that provisions in insurance policies for indemnity in case the insured is totally disabled from prosecuting his business do not require that he shall be absolutely helpless, but such a disability is meant which renders him unable to perform all the substantial and material acts of his business or the execution of them in the usual and customary way. Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457, 29 L. R. A. (N.S.) 635, 21 Ann. Cas. 1029; Brotherhood of Locomotive Firemen & Enginemen v. Aday, 97 Ark. 425, 134 S. W. 928; and AEtna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335.”
“The object to be accomplished was to indemnify the insured for loss of time for being wholly disabled from prosecuting his business. It has been well said that, if the language used was to be construed literally, the insurer would be liable in no case unless the insured should lose his life or his mind. Of course, as long as he is in possession of his mental faculties, he is capable of transacting some part of his business; but, as we have
already seen, he wаs not able to prosecute his business within the meaning of the policy unless he was able to do all the substantial acts necessary to be done in its prosecution.”
However, appellant contends the policy here involved is not one where total disability is insured against so that the courts are free to define the nature and extent of the disability. It is argued that appellee was insured against disability resulting in total loss of time, that the language of the policy must be construed literally and that appellee is precluded from recovering unless he was wholly and continuously disabled to perform each and every duty pertaining to his business or occupation.
The policy provides: “‘MONTHLY DISABILITY INDEMNITY’ PART I. If injury or illness as before described shall wholly, necessarily and continuously disable the Insured and prevent him for a period of ninety days from performing each and every duty pertaining to his occupation, the company will allow the monthly indemnity for the period the Insured shall thereafter be so disabled but not exceeding twelve consecutive months. The first payment of such indemnity shall be made one month following the ninety-first day of such disability and succeeding payments shall be made each month thereafter during such period.
“After the payment of monthly indemnity for the pеriod of twelve consecutive months, as aforesaid, the company will continue the payment of the monthly indemnity of the same amount so long as the insured shall be wholly, necessarily and continuously disabled and prevented by such injury or illness from engaging in any occupation or employment for wage or profit.
“Indemnity is not payable for the first ninety days of any period of disability as defined in Part I.” In Part II, which follows, the disability for whiсh indemnity is payable in Part I is referred to as “total disability“.
The Spencer case, supra, involved facts and a disability clause somewhat similar to those in the instant case. There are many other decisions to the same ef-
Appellant relies on such cases as Missouri State Life Ins. Co. v. Snow, 185 Ark. 335, 47 S. W. 2d 600; AEtna Life Ins. Co. v. Person, 188 Ark. 864, 67 S. W. 2d 1007; Metropolitan Life Ins. Co. v. Guinn, 199 Ark. 994, 136 S. W. 2d 681; and Mutual Life Ins. Co. of New York v. Phillips, 202 Ark. 30, 149 S. W. 2d 940. While the risks insured against in some of these cases are slightly different from those involved in the instant case, the company was relieved from liability because, under the particular facts, it was shown that the insured continued his occuрation after the alleged disability by performing the substantial and material acts and duties of his occupation in the usual and customary manner.
We hold that appellant insured appellee against “total disability” as defined by this court in the cases cited, that the question of appellee‘s ability to perform the duties of his occupation was properly one for the jury under evidence that is substantial and sufficient to support the verdict.
Error is assigned in the giving of appellee‘s requested Instruction No. 1. After quoting the pertinent provisions of the policy, this instruction concludes: “The provisions of the policy that I have quoted relating to disability does not mean a state of absolute helplessness. But it means that if there was any substantial part of the material acts necessary to be done pertaining to his occupation, that he could not perform in the usual and customary way, he would be disabled within the meaning of the policy.” The interpretation placed on the policy by the trial court in giving this instruction is in conformity with the rule laid down in the cases previously cited. It would unduly prolong this opinion to set out the factual differences in the numerous cases cited by appellant and those in evidence here. In its
Error is also assigned in the giving of appellee‘s requested Instruction No. 5, which reads: “The definition of the word ‘clerical’ includes, ‘CLERK: An assistant in a shop or store; a salesman or saleswoman, especially in a retail store.‘” Also, in the refusal to give appellant‘s requested Instruction No. 19, which reads: “The jury are instructed that the word ‘clerical’ is a word having a number of meanings, one of which is the doing of paper work, copying and keeping records and doing office work of that nature.” The court also instructed on the meaning of “managerial“. We think the jury was entitlеd to know whether appellee‘s duties as a clerk at the time of the issuance of the policy were included in the “clerical” duties as specified in the application. While it would have been proper to give appellant‘s requested Instruction No. 19, we find no prejudicial error in refusing it in the circumstances. It is undisputed that appellee did none of the work included in the definition requested—so the instruсtion really had no bearing on the issues in the absence of a plea of fraud.
The trial court refused to give numerous instructions requested by appellant which would have barred recovery unless the jury found appellee to be disabled in accordance with the literal terms of the policy. The requested instructions were in conflict with other instructions given on this issue and were properly refused. The court alsо properly modified several instructions
Appellant also insists that the question of appellee‘s disability to perform his occupation was submitted to the jury on the wrоng theory in that appellee had two separate occupations instead of one. Appellee‘s occupation was listed in his application as manager of a general store, but he was then only a clerk. At the time of his injury he was the operator of a grocery store. Since his duties were listed as managerial and clerical in the application, appellant argues thаt appellee‘s occupation was dual since he was both manager and clerk of his store and that the undisputed evidence shows that he could perform all managerial duties. Appellant relies on AEtna Life Insurance Co. v. Orr, 205 Ark. 566, 169 S. W. 2d 651, where the insured‘s occupation was stated as physician and surgeon and there was testimony showing that he could perform his duties as a physician in the usual manner, but could not perform his duties as a surgeon. In reversing the case on another point and remanding for a new trial, we held that insured was engaged in dual professions and that he could not be held to be totally disabled unless he was disabled both as a physician and as a surgeon. Appellee had only one occupation, either at the time the policy was written or at the time of his injury, although his duties were many. We do not agree that the evidence conclusively shows that appellee could perform the material and substantial duties of a store manager in the usual and customary way. The doctrine of dual occupations or vocations announced in the Orr case is inapplicable here.
Appellant also argues that the attorneys’ fee assessed by the court is shockingly excessive, while appellee says an additional fee should be allowed for services rendered on this appeal. The evidence on this issue shows that there were two trials of the case, that two members of the firm representing appellee spent two
In arriving at a fee of $1,625 the court stated: “As I understand the testimony from the attorneys testifying here, they fixed $1,500 as the minimum. I think it would be the better policy here to take into consideration the time spent in the preparation of the case and the trial of the case, and I am going to calculate that on the basis of thirteen days spent and on the basis of $125 a day, and that would make the sum of $1,625; and that will be the fee fixed by the court for the plaintiff‘s attorneys—$1,625. By that means I am getting away from any speculation as to that future right there under the policy.”
We have held that the object of the statute (
We hаve allowed fees in excess of the amount of recovery in cases where the determination of the questions involved also determined the liability of the company for future disability payments under the policy. Old Colony Life Ins. Co. v. Julian, 175 Ark. 359, 299 S. W. 366; Pacific Mutual Life Ins. Co. v. McCombs, 188 Ark. 52, 64 S. W. 2d 333. It is noted that the second paragraph of Part I of the policy provides for payment of monthly indemnity after the twelve-month period provided in paragraph one on certain conditiоns and uses language somewhat different from that employed in the first paragraph. It is true that a recovery in the present suit preserves appellee‘s right to seek further recovery for future installments under paragraph two, but it does not establish a right to future payments after the twelve-month period or determine appellant‘s liability therefor.
In fixing the fee on a per diem basis, the trial court calculated on a basis of 13 man-days spent in preparation and trial while the testimony is that 17 or 18 man-days were thus involved. In view of our former decisions, we do not think it sound to fix the fee solely on such basis—particularly where several members of a firm are involved, as here. Certainly the skill, work and time spent are to be considered along with the amount of recovery and the fact that a right to seek future recovery has been preserved. Upon consideration of all the circumstances, we have concluded that the fee allowed is somewhat excessive and should be reduced to $1,000.
The judgment is accordingly modified by reducing the attorneys’ fee to $1,000. In all other respects the judgment is affirmed.
ROBINSON, J., dissents to modification.
ROBINSON, J. This case was tried twice. It required two days in the first trial and three days the second time. Several of the witnesses lived at Conway and other places, although the case was tried at El
Last but not least, the appellee proved by several lawyers that a fee of some $1,500 to $2,000 would be reasonable and proper in this case, and their testimony stands uncontradicted.
For these reasons, I respectfully dissent from that part of the majority opinion reducing the attorney‘s fee.