{ "id": 8720859, "name": "Life & Casualty Company v. Sanders", "name_abbreviation": "Life & Casualty Co. v. Sanders", "decision_date": "1927-03-21", "docket_number": "", "first_page": "362", "last_page": "367", "citations": [ { "type": "official", "cite": "173 Ark. 362" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "191 S. W. 25", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "126 Ark. 494", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "145 S. W. 541", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "103 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1351983 ], "opinion_index": 0, "case_paths": [ "/ark/103/0001-01" ] }, { "cite": "175 S. W. 1161", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "118 Ark. 30", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "145 S. W. 540", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "opinion_index": 0 }, { "cite": "102 Ark. 675", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1354037 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/102/0675-01" ] }, { "cite": "246 S. W. 508", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "156 Ark. 17", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1358499 ], "opinion_index": 0, "case_paths": [ "/ark/156/0017-01" ] } ], "analysis": { "cardinality": 492, "char_count": 9648, "ocr_confidence": 0.494, "pagerank": { "raw": 3.4967366455859915e-07, "percentile": 0.8825568594925804 }, "sha256": "53ba0a0b07d884ea61ca529c037235ec1aa8a04bb0bf342915c56da7132d0384", "simhash": "1:d41747e7ba6d0d9a", "word_count": 1682 }, "last_updated": "2023-07-14T20:39:02.380114+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Smith, J., dissents in part." ], "parties": [ "Life & Casualty Company v. Sanders." ], "opinions": [ { "text": "McHaNEy, J.\nThis is an action by appellee against appellant to recover weekly benefits accruing to him under two policies of health and accident insurance, providing for a total indemnity of $8 per week, issued by appellant to him. The policies were issued by appellant in 1918, and the premiums thereon were paid for several years. In his original complaint he alleged that he had become totally disabled in July and continued so between August 1, 1923, and the date of bringing this suit, a total of seventy-nine weeks, for which he had not been paid, as provided in said policies, making a total of $632, for. which he asked judgment.\nAppellant denied liability on the ground, first, under a provision of the policy wherein it is provided \u201cthat, should sickness begin prior to the date of said policy, or be caused by intemperance, immorality or venereal disease, no payments will be made\u201d; that appellee, at the time of the delivery of the policy, had a venereal disease, syphilis, from which he is still suffering; and, second, that on January 29,1924, they paid him a small sum under each of said policies, which was accepted by him in full satisfaction of his claim against it, and that this payment amounted to a-settlement in full for all liability thereunder.\nThe case was tried before a jury, under instructions which are not complained of by appellant, except its request for a directed verdict in its favor, which the court refused, and the jury returned a verdict for plaintiff in the sum of $468.70, to which amount the court added $125 as attorney\u2019s fee, and the twelve per cent. penalty provided by law-. Thereafter appellant filed a motion for a new trial, which was overruled, and it has appealed to this court.\nAppellant\u2019s first contention is that the court should have instructed a verdict in its'favor, \u201cunless the release or contract of settlement, signed by fhe appellee, was void for the reasons as alleged in the complaint and pleadings of appellee.\u201d The complaint alleged that the settlement was procured from appellee through false and fraudulent representations and statements of appellant\u2019s agent, and that it was therefore void. Appellant testified that he is a negro, is married, and has been living with his wife as husband and wife about thirteen years; has never had syphilis or any other venereal disease, and has not now; that he is now totally disabled, and has been since July 11, 1923; that the agent of the company came to him and wanted him to settle with them; \u201cthey told me we just as well get the money, they wasn\u2019t going to pay me no more\u201d; that the doctor had reported he had syphilis; that he didn\u2019t know the doctor had reported he had syphilis, as the doctor had never told him that he had syphilis.\n\u201cQ. Why'did you accept the money and make these settlements? A. Well, just because I didn\u2019t want to be bothered with them. They kept worrying me to death. Of course I knew I didn\u2019t have syphilis. The agent said I just as well take it because they were not going to pay me any more claims, whether I had syphilis or didn\u2019t.\u201d\nHis wife, Millie Sanders, testified with reference to this settlement to substantially the same things testified to by her husband, and, in addition, she said that, when the agent told her her husband had syphilis, she asked him who said so, and he said \u201cThat is what the blank shows.\u201d She further said that she told the agent that they had paid her five claims, and she wanted to know the reason they wouldn\u2019t pay her, and he told her that her husband had syphilis. Further, that she accepted the money after he wouldn\u2019t receive money on the policies, making the policies lapse, and that is another reason why she made the settlement, that they wouldn\u2019t take the premiums, and said the policies would lapse and she wouldn\u2019t get anything, so she settled with them.\nDr. E. H. White testified that he made a blood examination of appellee for' syphilis, and found that he .didn\u2019t have it. Several other doctors testified that plaintiff did not have syphilis. There appears in the bill of exceptions the statement of Dr. Oscar Cray, the physician who examined him on his application for sick benefits, and on the form required by the company, in which he stated that the appellee was suffering with paralysis and strangulated hernia, and, in answer to question 10, \u201cIs disease venereal or of venereal origin?\u201d he answered \u201cNo.\u201d\nThere was sufficient testimony in the record therefore to go to the jury on the question of whether appellant\u2019s agent made false and fraudulent representations to the appellee in getting him to surrender his policies and accept a small settlement in full satisfaction thereof.\nHe made the statement to both appellee and his wife that appellee had syphilis; that the doctor in his report had so stated, and that the company wouldn\u2019t pay any benefits for this reason; that they would not accept any more premiums, and that the policies would lapse.\nIt is undisputed that appellee relied upon these statements and accepted a nominal sum in settlement thereof, and we think the court properly submitted this question to the jury, and that appellant\u2019s request for a directed verdict was properly denied.\nIt is next insisted that the court erred in excluding the proffered testimony of Dr. Grebauer, to the effect that he had examined- a specimen of blood, supposedly that of appellee, Harris Sanders, and found it to be \u201c2 plus Wasserman positive,\u201d showing that appellee was afflicted with syphilis. But the witness was unable to testify that the specimen examined was taken from .appellee. He said that probably ninety per cent, of their \u2022 specimens were taken by him, but that he is not positive whether, in this case, he took the specimen himself or whether Dr. Judd took it and delivered it to witness. The court properly excluded the-proffered testimony, for the reason appellant failed to show that the specimen examined was that of appellee.\nIt is finally insisted that the court erred in assessing the twelve per cent, penalty and attorney\u2019s fees,- because the court permitted appellee to amend his complaint, over appellant\u2019s objection, at the conclusion of the testi- ' mony of witness Dillingham, manager for appellant, who was appellee\u2019s first witness, and thereby reducing the amount claimed from $632 to $468.70. Generally it is within the discretion of the court to permit the complaint to be amended during the trial or at the close of the testimony to conform to the proof. Duff v. Ayers, 156 Ark. 17, 246 S. W. 508. \u25a0 But it is urged that, having brought suit and gone to trial on a demand for more than justly due, appellee could not amend his complaint by reducing the demand to the correct -amount, and recover the statutory penalty and attorney\u2019s fees in addition thereto. We do not agree with appellant in this contention. If, instead of proceeding with the trial of the case and denying any liability whatever on the grounds here urged, it had either offered to pay the reduced amount, or had asked to be given the time in which to pay same as provided in the policies, appellee could not have recovered the penalty and attorney\u2019s fees, and, in addition, would have been required to pay all costs, for the reason that he demanded a sum greater than he was entitled to under the policies.\nIn Queen of Ark. Ins. Co. v. Milham, 102 Ark. 675, 145 S. W. 540, appellee brought suit on the policy, and appellant answered, denying that it -owed him the amount claimed, and set up a breach of certain conditions of the policy. Later it amended its answer, in which it said that appellee owed it the sum of $12 and interest on a note given for a part of the premium for the policy sued on, and asked.that the same be allowed as a credit or set-off against any amount that might be found to be due appel-lee.. Appellee then filed an amendment to his complaint, in which he admitted that he owed the appellant the premium note of twelve dollars and interest, and asked for judgment in the sum of $423.36 as the amount sued for.\u201d The jury returned a verdict for this amount, and the court allowed the twelve per cent, penalty and attorney\u2019s fees. On appeal the only question raised was the error of the court in 'assessing\u2019 the penalty and attorney\u2019s fees under the statute, and, in disposing of the case, this court said: \u201cWhen appellant filed its'amended answer and claimed as a set-off the amount due it by appellee on the premium note, appellee at once conceded that the amount should he deducted from the amount sued for in his original complaint, and only asked judgment for the difference, which was $423.36. If appellant wished to avoid the penalty and attorney\u2019s fee provided for in the statute, it should have offered to confess judgment for that amount, and thus have ended the suit. . It did not do so, but elected to go on and contest the claim of the appellee on other grounds, and thereby became liable for the penalty and attorney\u2019s fees provided for in the statute when appellee recovered the amount sued for.\u201d Great Southern F. Ins. Co. v. Burns & Billington, 118 Ark. 30,175 S. W. 1161; Queen of Ark. Ins. Co. v. Milham, 102 Ark. 675, 145 S. W. 540; Queen of Ark. Ins. Co. v. Bramlett, 103 Ark. 1, 145 S. W. 541; Am. Natl. Ins. Co. v. White, 126 Ark. 494, 191 S. W. 25.\nThe.jury returned a verdict for the sum demanded, $468.70, and the court properly assessed the penalty and attorney\u2019s fees. No error appearing, the judgment is affirmed.\nSmith, J., dissents in part.", "type": "majority", "author": "McHaNEy, J." } ], "attorneys": [ "Isgrig & Dillon, for appellant.", "Longstreth & Longstreth and J. A. Weas, for appel-lee." ], "corrections": "", "head_matter": "Life & Casualty Company v. Sanders.\nOpinion delivered March 21, 1927.\nIsgrig & Dillon, for appellant.\nLongstreth & Longstreth and J. A. Weas, for appel-lee." }, "file_name": "0362-01", "first_page_order": 378, "last_page_order": 383 }