{ "id": 1421974, "name": "National Equity Life Insurance Company v. Parker", "name_abbreviation": "Nationa Equity Life Insurance v. Parker", "decision_date": "1935-03-25", "docket_number": "4-3806", "first_page": "642", "last_page": "647", "citations": [ { "type": "official", "cite": "190 Ark. 642" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "16 S. W. (2d) 6", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "179 Ark. 398", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722471 ], "opinion_index": 0, "case_paths": [ "/ark/179/0398-01" ] }, { "cite": "112 S. W. 176", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "87 Ark. 70", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1519105 ], "opinion_index": 0, "case_paths": [ "/ark/87/0070-01" ] }, { "cite": "63 S. W. (2d) 535", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "187 Ark. 974", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1432125 ], "opinion_index": 0, "case_paths": [ "/ark/187/0974-01" ] }, { "cite": "213 S. W. 791", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "279 Mo. 40", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 1817083 ], "opinion_index": 0, "case_paths": [ "/mo/279/0040-01" ] }, { "cite": "69 S. W. (2d) 280", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "188 Ark. 1041", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1428274 ], "opinion_index": 0, "case_paths": [ "/ark/188/1041-01" ] } ], "analysis": { "cardinality": 515, "char_count": 11134, "ocr_confidence": 0.5, "pagerank": { "raw": 5.0011153170616546e-08, "percentile": 0.3139271826272497 }, "sha256": "d276446f425429703f6472d58731ea986927fc617e19ee85488689f5caeec515", "simhash": "1:9d9724d3a559cd5e", "word_count": 1918 }, "last_updated": "2023-07-14T23:00:44.353149+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "National Equity Life Insurance Company v. Parker." ], "opinions": [ { "text": "Smith, J.\nAs appears from the facts stated in the opinion on a former appeal in this case (National Equity Life Insurance Co. v. Parker, 188 Ark. 1041, 69 S. W. (2d) 280), this is a suit upon a life insurance policy which contained the recital that: \u201cThis policy is issued in consideration of the application.herefor, a copy of which is attached hereto and made part hereof, and of the payment in advance of seventy-six and 08/100 dollars, being the premium for one year\u2019s term insurance from the date hereof and the advance reserve required by law, and the further payment of a like amount on or before the first day of July in every year thereafter during the continuance of this policy.\u201d The plaintiff recovered a judgment, which was reversed upon the appeal for the refusal to give, at appellant\u2019s request, an instruction numbered 4, reading as follows: \u201cYou are instructed that, if you believe from the evidence in this case that the only premium paid by Joseph W. Parker was the monthly premium of $8.70 paid at or before the time of the delivery of the policy, then said policy lapsed at the end of the thirty-one days\u2019 grace period on September 1, 1931, and you should find for the defendant. \u2019 \u2019 The policy was dated July 1,1931, and the insured died March 15,1932.\nAt the second trial, upon the remand of the cause, the plaintiff identified the policy and herself as the beneficiary thereunder and introduced it in evidence. She testified also that she had furnished proof of the death of the insured, and then rested, and no further evidence was introduced at the trial from which this appeal'comes on her behalf. A motion was filed and served before the trial requiring the plaintiff to produce the check, or other evidence showing how the premium had been paid, to which no response was made. Plaintiff again recovered judgment for the face of the policy, and for the affirmance of that judgment it is insisted that the recital of the policy above quoted is an acknowledgment of the payment and receipt of a full year\u2019s premium, which sufficed to keep the policy in full force and effect to a time beyond the date of the death of the insured; and that the jury was warranted in finding, as was found, that the presumption of payment raised by the possession of the policy containing the above recital was not so conclusively overcome by the testimony as to justify the withdrawal of the question of payment of premium from the consideration of the jury. It is insisted also that the effect of the former opinion was to hold that this question of payment ivas a proper question to be submitted to the jury, and that, inasmuch as that question AVas submitted under instructions given at the former trial, which Avere not held erroneous in the former opinion, the judgment should be affirmed.\nThe decision of that question requires a recital of the testimony to sIioav AArherein the present record differs from that on the former appeal. In that connection the fact may be restated that in the present record appellee relies solely upon the presumption arising from the possession of the policy containing the recital as to payment of premium above quoted.\nAppellant\u2019s first answer is that the recital quoted is not an ackno wledgment of the payment of a year\u2019s premium, inasmuch as it does not recite that the sum named was received by the company. Appellant cites a number of cases sustaining that contention, and, among others,' the case of Missouri State Life Insurance Co. v. Salisbury, 279 Mo. 40, 213 S. W. 791. The policy there sued on contained a recital quoted in the opinion in that case very similar to the one hereinabove quoted. The Supreme Court of Missouri there said: \u201cThat recital is not a specific acknowledgment of payment; it merely states what the first payment shall be as consideration for the issuance of the policy.\u201d\nOther cases are cited where the policies sued on contained the phrase, \u201cthe receipt of which is hereby acknowledged,\u201d in which cases the policy was clearly a receipt for the premium referred to. But we do not rest the decision'of this case upon that distinction. It was held in the case of Washington Fidelity National Insurance Co. v. Anderson, 187 Ark. 974, 63 S. W. (2d) 535, that the delivery to and the possession of the policy by the insured is prima facie evidence that the first premium, the one essential to make the contract effective, has been paid; but it is only prima facie evidence of that fact. In the instant case it is admitted that a premium was paid, and that upon its payment the policy became effective. But for what period of time was the premium paid? If it be admitted that prima facie it was paid for a year, this is only prima facie true, for, as was said in the Anderson case, supra, \u201cSuch prima facie case may be overcome.\u201d The case of Industrial Mutual Indemnity Co. v. Perkins, 87 Ark. 70,112 S. W. 176, is to the same effect.\nAppellee\u2019s case rests wholly upon this presumption; but we are of the opinion that the undisputed evidence overcomes this presumption. It is to the following effect: Meyer, the insurance agent who took the application, testified that he was not then employed, by the appellant insurance company, and that the applicant applied for a policy upon which the premium was payable monthly. Premiums were ordinarily payable annually, semi-annually, or quarterly, and were not payable monthly except upon special request. Parker, the insured, made that request, and upon this request there was written into that portion of the application inquiring whether the premium should be annual, semi-annual, or quarterly, the word \u201cmonthly.\u201d The agent testified that the application thus written was signed by Parker, and was sent to the company as the application upon which the policy was written. At the former trial the beneficiary and her brother testified that the signature of Parker was not his genuine signature. This evidence that the application was a forgery was thought sufficient to raise the question as to the genuineness of the application, although a photographic copy of the application was attached to the' policy sued upon.\nThere was no evidence at the trial from which this appeal comes tending to impeach the verity of the application as signed by the insured. Moreover, the policy has upon its back a typewritten statement of the amount of money required to pay the premium annually, semiannually, quarterly, or monthly, the monthly premium being $8.70. This application contained the recital that: \u201cThe payment of any installment shall not maintain the policy in force beyond the time the next installment becomes due. \u2019 \u2019 Mey\u00e9r further testified that he collected only $8.70, covering the first monthly premium, and' that he made no other collection. He also testified that, when he received notice from the home office of the company that Parker had paid only one premium, and that the policy had lapsed on that account, he went to see the insured about reinstating the policy, but the insured told him that he was unable to pay the premiums. He saw Parker on two subsequent occasions and was given the same answer each time.\nThe insurer\u2019s actuary testified that the policy was issued upon the application for the policy with premium payable monthly, which application was received June 23, 1931;-that \u201cthe policy was issued and sent to Mr. Meyer for delivery; that the company also sent a form which we use when a request, in connection with an ordinary policy, is made for payment of the premiums other than annually, to be signed by the insured at the time of the delivery of the policy. The instructions in the delivery sheet told Mr. Meyer to have this form signed and returned to the home office.\u201d This request or form was returned to witness apparently signed by Parker, and was introduced in evidence. No testimony Avas offered tending to impeach its verity. The Avitness testified that the insurance company\u2019s record showed the payment of $8.70 only. That a properly addressed notice Avas sent to the insured of the premium due August 1, and that on September 2, after the expiration of the thirty-one days\u2019 of grace, the insured Avas notified by letter that the policy had lapsed. The Avitness testified that he had personal knoAvledge of the accuracy of these records.\nThe bookkeeper, Avhose duties Avere limited to the recording of the first premiums paid on policies, testified that she made an entry of the first payment on July 9, 1931, Avhich Avas credited on her records as f o\u00fcoavs : $6.85 for life premium, $1.31 for disability premium and $0.54 for double indemnity premium, these items totaling $8.70. Miss Payne, an employee of appellant Avho keeps the record of all premiums other than the first premiums, testified that there Avas no record of any premium except the first, and that, had there been, her records Avould have shown that fact. Mrs. Satterwhite testified that she was notice clerk, and that she kept the records showing the dates upon which notices Avere mailed to policyholders, the cards as to monthly premium payers being of a different color from the other cards, and that the card relating to Parker\u2019s policy showed notice mailed to the insured on July 20 of the payment due August 1, and notice mailed on August 20 of the payment due September 1, and that the card showed also the mailing of notice that the policy had lapsed. There is no fact or circumstance tending to question the truth of any of this testimony save only the presumption to Avhich we have referred.\nThe case of National Equity Life Ins. Co. v. Bourland, 179 Ark. 398, 16 S. W. (2d) 6, was a suit upon a policy AA'hieh the appellant here had also issued, and which contained the identical recital \u201cof the payment in advance of an annual premium\u201d found in the policy here sued on. In that case the payment of premium Avas changed, at the insured\u2019s request, from an annual to a quarterly premium. The policy lapsed for the failure io pay a quarterly premium before the expiration of a year. It Avas there held (to quote a headnote in that case) that, \u201cWhere the insured recognized the correctness of the quarterly premium dates, of which he was notified frequently by the insurer, his failure to pay a quarterly premium when due held to forfeit his policy. \u2019 \u2019\nSo, here, the undisputed and unexplained application of the insured for a policy with premiums payable monthly, and the subsequent formal request to the same effect, both signed by the insured, show beyond question that the policy sued on was issued in consideration of a monthly, and not an annual, premium; and we think it equally as certain that only one premium was paid, and that this premium was insufficient to keep the policy in force until the date of the insured\u2019s death.\nIt follows therefore that the judgment must be reversed, and, as the case appears to have been fully developed, it must be dismissed, and it is so ordered.", "type": "majority", "author": "Smith, J." } ], "attorneys": [ "M. J. Harrison and Moore, Gray, Burrow & Chonming, for appellant.", "Hide \u00e9 Huie and H. T. Harrison, for appellee." ], "corrections": "", "head_matter": "National Equity Life Insurance Company v. Parker.\n4-3806\nOpinion delivered March 25, 1935.\nM. J. Harrison and Moore, Gray, Burrow & Chonming, for appellant.\nHide \u00e9 Huie and H. T. Harrison, for appellee." }, "file_name": "0642-01", "first_page_order": 660, "last_page_order": 665 }