Pacific Mutual Life Insurance v. McCombs ( 1933 )

STATEMENT BY THE COURT.

On December 1, 1923, appellant insurance company issued to Robert B. McCombs its "accidental total loss benefit policy," wherein appellees, the widow and children of the insured, were designated as beneficiaries, and, by the terms of said policy, the insurer agreed to pay said beneficiaries, in the event of the death of the insured, by external, violent and accidental means, the sum of $20,000. On September 17, 1929, appellant insurance company issued to Robert B. McCombs a second "accidental total loss benefit policy," identical in all respects to the first policy, save and except the amount payable thereunder in the event of death, which was for $5,000. On February 13, 1932, while the two policies of insurance as aforesaid were in full force and effect, the insured died, either from drowning, a heart attack, or both concurring.

This suit was instituted by appellees, the beneficiaries in said policies of insurance, against appellant in the Pulaski Circuit Court, wherein appellees alleged the issuance of the policies, their effectiveness on February 13, 1932, the death of the insured caused by external, violent and accidental means, and the liability of appellant therefor. Appellees further alleged that each of the policies, as aforesaid, carried an option numbered 2 as follows:

"The insured may elect to have the death benefit under this policy, or any portion thereof, paid in accordance with the following settlement options, and may subsequently change or revoke such election. OPTION 2. Retained by the company, interest at the rate of 3 1/2 per cent. per annum to be paid thereon monthly, quarter-annually, semi-annually or annually, and the amount so retained, with any unpaid accrued interest thereon, to be paid at such time as agreed on with the company in the election of this option."

It was further alleged that on January 20, 1932, the insured, by written request, exercised said option No. 2, and that there is now due and payable to appellees under said option the total sum of $1,968.75, for which sum judgment was prayed.

Appellant moved that said cause of action be removed to the Federal court, the amount in controversy being in excess of $3,000, which motion was denied by the circuit court, and this alleged error is here presented for determination. After removal was denied, appellant filed its answer, in which it admitted the execution of the policies sued on, the payment of all premiums thereunder, and that the insured had exercised the option provided for in option No. 2, and further admitted that said policies were in full force and effect on February 13, 1932. It denied that the insured lost his life on account of external, violent or accidental means, and denied any liability under either of the policies sued on. Appellant affirmatively alleged that the policies provided "this policy does not cover loss resulting directly, or indirectly in whole or in part from * * * disease, that the death of the insured resulted directly and or indirectly in whole and or in part from disease."

A voluminous amount of testimony was taken during the trial which tended to establish the respective theories of the parties, to-wit: Accidental death on behalf of appellees, and suicide and disease on behalf of appellant. The jury determined that death was due to accidental means; and it is conceded by appellant that the evidence is sufficient to support this finding.

In presenting testimony on behalf of appellees, the trial court permitted Charles Rutland and E. V. Balding to testify that in their opinions Mr. McCombs' death was due it drowning, and this alleged error is here insisted upon for reversal.

The instructions given by the trial court are complained of, and we here set out instruction No. 2, given in behalf of appellees, which shows the theory upon which the cause was submitted to the jury and the error complained of:

"Even though you should find that some disease or bodily weakness contributed to Mr. McCombs' death by disabling him from controlling his automobile and causing it to go into the water, or otherwise, still, if you also believe from the testimony that such disease or bodily weakness was not a settled condition to which he was subject but a temporary disturbance or enfeeblement, then the court instructs you that it would not prevent a recovery by plaintiffs, and the death would still be covered by the policies of insurance, if it resulted from accidental drowning, notwithstanding such disease so contributed as a cause of the death; and, if you believe from the testimony that the deceased was alive when he went into the water and his death there resulted from accidental drowning, then your verdict should be for the plaintiffs, notwithstanding you should find that such disease caused him to go into the water or otherwise contributed to his death."

All other instructions given were modified to conform to the theory stated in No. 2.

Upon the jury's verdict, a judgment was rendered in circuit court in favor of appellees and against appellant for $656.25, and for $1,000 attorney's fee and 12 per cent. penalty. (after stating the facts). Appellant contends, first, that the trial court erred in refusing to transfer this case to the Federal court. We think this contention has been definitely decided adversely to appellant's contention in the case of Standard Life Insurance Company v. Robbs, 177 Ark. 275, 6 S.W.2d 520, wherein this court held, quoting from the first headnote:

"An action against an insurance company for installments due under a policy totaling $1,700 as not removable to the Federal court, though the total installments to become due under the policy exceed the jurisdictional amount of $3,000."

The doctrine announced in the Robbs case has not been overruled, impaired or modified by any opinion of the Supreme Court of the United States.

It is next contended that the trial court erred in (permitting two witnesses, Messrs. Rutland and Balding, to give their opinions in reference to the cause of the death of Mr. McCombs, to-wit: drowning. The record discloses that the two witnesses referred to were embalmers located in Little Rock, and that each of them had had a number of years of experience in handling dead bodies. Among the bodies so handled were deaths caused by drowning. These witnesses, after detailing the facts and circumstances ascertained from the preparation of the body for burial, testified that in their opinion the deceased died from drowning. This court has many times held that a nonexpert witness may testify as to his opinion, after stating the facts on which the opinion is based. Griffin v. Union Trust Company, 166 Ark. 347,266 S.W. 289; Benefit Association v. Jacklin, 173 Ark. 937,294 S.W. 353; St. Louis-San Francisco Railway Company v. Barron, 166 Ark. 641, 267 S.W. 582; Bush v. Brewer,136 Ark. 246, 206 S.W. 322.

The opinions of the witnesses referred to were competent for still another reason. In Railway Company v. Shoecraft, 56 Ark. 465, 20 S.W. 272, this court said: "A witness' opinion is admissible as evidence, not only where scientific knowledge is required to comprehend the matter testified about, but also where experience and observation in the special calling of the witness give him knowledge of the subject in question beyond that of persons of common intelligence."

The next contention is that the trial court erred in giving, modifying and refusing to give certain instructions. The action complained of appears definitely from the quoted instruction no. 2. It will be noted that the theory on which the case was submitted to the jury was that the disease which would take the death out of the policy must be a settled condition as distinguished from a temporary disorder. All instructions requested and given by the trial court were made to conform to this theory. This court has many times held that insurance policies will be construed most favorably to the insured, since the policy is couched in the language chosen by the insurer. Fidelity Casualty Company v. Meyer,106 Ark. 99, 152 S.W. 995; Maloney v. Maryland Casualty Company, 113 Ark. 174, 167 S.W. 845. It will be noted that the insurance policy uses the general term "disease" to create an exception to the general coverage of the policy. The meaning of the word "disease" could have been restricted by appellant had it so desired, and, since there are no restrictions in the policy in reference thereto, we should give it its usual and ordinarily understood meaning. Webster's International Dictionary defines the word as follows: "A disease is usually deep seated and permanent or at least prolonged; a disorder is often slight, partial and temporary." Since the policy itself gives no definition of the word "disease" as used in the policy, it should be given its usual and ordinary acceptation. When this is done in the instant case, it was perfectly proper for the trial court to tell the jury what, under the laws, was a disease as distinguished from a temporary disorder. We therefore conclude that the trial court committed no error in modifying all requested instructions to conform to this definition. The views here expressed are in accord with many opinions on the subject. See case notes in 34 and 52 L.R.A. (N.S.) 445 and 1203, respectively. Other alleged errors are urged to the instructions given and refused by the trial court, but we deem them not of sufficient importance to discuss in this opinion. It suffices to say that the trial court submitted the case to the jury under instructions which were fair, impartial and in conformity with the law as we have herein construed it.

The next insistence for reversal is that the trial court erred in allowing an attorney's fee and a 12 per cent. penalty on the amount recovered. The contention is that the prayer of the complaint was for $1,968.75 and appellees recovered only $656.25. It is perfectly apparent from the language used in the complaint that the amount sought to be recovered was 3 1/2 per cent. per annum, interest on the aggregate amount due. This, of course, fixed the amount demanded and the calculation of $1,968.75 was a mere error in figures. At any rate, before the case was submitted to the jury, by permission of the court, the complaint was amended to conform to the testimony, and a recovery was had for the full amount based upon the 3 1/3 per cent. calculations. Life Casualty Company v. Sanders, 173 Ark. 362, 292 S.W. 657. Appellant denied liability on the first complaint and continued to deny liability after the complaint was amended.

We therefore hold that plaintiff did recover the amount sued for, and was entitled to a reasonable attorney's fee and a 12 per cent. penalty on the amount recovered. To maintain its position, that appellees are not entitled to recover attorney's fee and penalty in this case, we are cited to Pacific Mutual Life Insurance Company v. Carter, 92 Ark. 378, 123 S.W. 384. This case is easily distinguishable from the Carter case. In that case the amount of recovery was the main issue, it being contended that the insured had engaged in a more hazardous occupation which by the terms of the policy reduced the amount of recovery. No such contention is here made. A definite denial of liability was asserted and maintained throughout the trial.

No error appearing, the judgment is in all things affirmed.