{ "id": 8718982, "name": "Garrett v. Pyramid Life Ins. Company", "name_abbreviation": "Garrett v. Pyramid Life Ins.", "decision_date": "1938-11-28", "docket_number": "4-5267", "first_page": "193", "last_page": "199", "citations": [ { "type": "official", "cite": "197 Ark. 193" }, { "type": "parallel", "cite": "121 S.W.2d 898" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "261 S. W. 320", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "164 Ark. 75", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1382161 ], "opinion_index": 0, "case_paths": [ "/ark/164/0075-01" ] }, { "cite": "165 S. W. 454", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "112 Ark. 171", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1538795 ], "opinion_index": 0, "case_paths": [ "/ark/112/0171-01" ] } ], "analysis": { "cardinality": 592, "char_count": 13467, "ocr_confidence": 0.506, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.7497321272398506 }, "sha256": "b6532cc022f0668aefae81ecc3315390b975460ff6789eec26ea14e5a68b1997", "simhash": "1:673e8ac413d11069", "word_count": 2462 }, "last_updated": "2023-07-14T22:44:13.530812+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Garrett v. Pyramid Life Ins. Company." ], "opinions": [ { "text": "Smith, J.\nMrs. Lizzie Garrett, hereinafter referred to as appellant, brought suit on May 5, 1937, against the Pyramid Life Insurance Company, hereinafter referred to as appellee, to collect a policy of insurance issued by appellee, under date of September 30, 1935, on the life of Tome J. Garrett, her son, in which she was named as beneficiary. The insured was killed September 12, 1936.\nIn response to a motion to make the complaint more definite and certain, the court, on September 24, 1937, sustained a motion to require appellant to state the date of premium payments, to whom paid, and to set out the receipts for the payments made. On April 15, 1938, appellant stated, in answer to this order of the court, that a premium payment, amounting to $22.82, was made by the insured, Tome J. Garrett, on the.day of October, 1935, and that the payment was made to appellee\u2019s general agent, Kenneth S. L. Cooke, and a receipt given therefor. Appellee filed an answer, alleging that only one premium payment had been made, that being a payment for \u00e1 quarter of the year, and that the policy had lapsed on account of nonpayment of other required premiums.\nPractically no attempt was made to prove a premium payment in the amount and manner alleged except by the testimony of Ben Cockerill. \u2022 This witness testified that the insured met Cooke, the agent, in' Hot Springs, and paid Cooke the premium and' took a receipt therefor. When asked, \u201cDid the receipt say it was for balance on premium, for annual, semi-annual or quarterly?\u201d, he answered, \u201cAnnual,\u201d and that Cooke said \u201cit was the annual premium for the year.\u201d\nThis testimony was in conflict with all the other testimony previously offered by appellee upon the question of the payment of premium, the other testimony being to the effect that the payments made were all quarterly premiums. This contradiction was qualified by Cock-erill\u2019s answer \u201cYes\u201d to the following question: \u201cI believe you said this receipt stated \u2018the remaining part of the annual premium\u2019?\u201d.\nWhen the first testimony was offered conflicting with the allegations of the response to the motion to make definite and certain, the following colloquy occurred between .the court and counsel for appellant: \u201cCourt: I know. We had this matter up in my office sometime ago. Mr. Talley, in your original complaint, there was no allegation as to the payment of this premium, and the court was of the opinion that the defendant should have some notice of what your contention was in that respect and granted defendant\u2019s motion to make the complaint more definite and certain, by setting up when these payments were made. Now, you did that by way of an amendment and response to the motion. Now, let me see your response. You allege in here that the premium was paid by the insured, Tom G-axrett, in the amount of $22.80, and that the premium was paid sometime in October. Now, your proof would be confined to that allegation. Mr. Talley: At this time I want to amend the complaint to include that the premiums were paid in the month of October, 1935, as set out in the amended complaint, as well as of July 30, or in July or August, 1936. It is a universal rule that you can amend. Court: It might be if it was the first time the matter was called to the attention of the attorneys, but we spent considerable time in trying to get the issues in this case in such condition that both parties could be ready for trial today. Now, when yon come up and allege a different method of payment, then the defendant is not put upon notice. What is he expected to meet by way of proof 1\u201d\nHowever, tlie court permitted testimony to be offered that the premiums had 'been paid quarterly, and upon that issue the following testimony was heard.\nEdward W. Garrett, a brother of the insured and a son of the beneficiary,\u2019 testified that he knew that his mother paid two premiums. He did not recollect whether they were quarterly premiums, but it \u201c seemed to me like the first one was two dollars and something,\u201d and he did not recollect the amount of the second payment, but he had seen four different receipts. He identified a receipt offered in evidence dated October 10, 1935, for $3. Another receipt was offered in evidence elated February 11,1936, for $2. And, when asked, \u201cDid she (Mrs. Garrett) make any payments other than these, or was that the extent of her payments?\u201d answered, \u201cI don\u2019t think she did.\u201d He was further interrogated as follows: \u201cQ. Did you state that later, other payments were made to Mr. Cook? A. Yes. Q. Where was that? A. I don\u2019t exactly know, but I think it was made in the CC'C camp. Q. How do you know?- Were you there at the time? A. No. Q. Then you couldn\u2019t testify to that? A. He came home with a receipt in his pocket. Q. Do you remember the dates on the receipts that you saw after these two \u2014 the dates of them? A. No. My mother took care of all that and I never paid much attention to it. Q. What was the amount of the receipts ? A. Those two? Q. No, the other one you saw; what was the amount of it? A. I think it was $6. Q. You stated one of these subsequent receipts was for $6. What were the others -for? You stated you saw two other receipts, didn\u2019t you? A. No, \u00cd just only saw one. Q. About when was the date you saw this last receipt that was paid; and for what period was that? A. The best I recollect, it was in July, but I am not sure about it. Q. Of what year? A. 1935. Q. You said 1935. This policy was issued in 1935. A. 1936, it was. Q. But you do know this: you know that premium was paid in July, 1936 \u2014 that $6 premium, do you not? A. Yes, I saw that; he had it in his pocket. \u2019 \u2019 When asked if he saw the date when the receipt was issued which he saw in July, the witness answered: \u201cI don\u2019t recollect just exactly.\u201d\n\u2022 The witness Cockerill, above referred to, identified the time when he saw the receipt which he mentioned as being during the time he and the deceased were working in the HOC camp in July, 1935. . In answer to repeated questions he was very definite that the time was in July, 1935, in fact, July 30, 1935. In a final attempt to have the witness place the date a year later, he was asked, on his redirect examination: \u201cQ. Was it 1935 or 1936? Refresh your memory by something and give the date. A. It was 1935 when we were in camp. Q. You went into the 'COC camp in 1935? A. Yes.\u201d The inquiry was not pursued further, and the witness was excused.\nThe widow of deceased testified that her husband paid as much as $5, and she didn\u2019t know how much more. Her husband went to the courthouse to make the payment to the agent, and she went with him, but did not go in the courthouse and did not see the payment made, but her husband had a receipt for $5, which he placed in his pocketbook, and after his death she kept it with her things, and it was still in the pocketbook the last tim\u00e9 she saw it, but does not know where it now is, and she did not know who had signed the receipt and was not sure as to the amount receipted for.\nThe guardian of the insured\u2019s children testified that he took charge of deceased\u2019s effects and his papers, which were in a box, and \u201cthere was one receipt, I guess you would call it, for the money he had paid in, was all I know anything about.\u201d He testified that the receipt he saw in the box \u2018 \u2018 was something similar to the receipt here. \u201d\nThe beneficiary testified that Avhen the application for the policy was made she paid \u2018 \u2018 a couple of dollars, \u2019 \u2019 and that, altogether, she made \u2018\u2018two or three payments.\u201d When the policy was delivered she made the payment evidenced by the receipt dated October 10, 1935, above referred to, and that a receipt was given her for each payment made, and that when she made the last payment to 'Cooke she was told by him that this was the last payment she would have to make and the policy was in full force. The answer to this leading question was the word \u201cYes,\u201d but it does not state, for what period of time the policy would be in full force. 'She was then interrogated as follows: \u201c Q. Did he tell you that you would have to pay any more premiums on that policy-year? A. A year? Q. On that policy for a year? A. No, sir. Q. He said you wouldn\u2019t have to pay any more premium? A. Yes. Q. For the policy-year ? A. I don\u2019t remember. You see, I didn\u2019t make any more payments, and it stopped at that. Q. Did he tell you it wouldn\u2019t be necessary to make any more payments? A. I don\u2019t know. Q. In other words, did he say the policy was paid up? A. Yes, he said that.\u201d\nThis witness testified that the first payment- was made by note for the premium, and after a number of questions by her counsel, all more or less leading, in regard to this note, which elicited no definite information, the court said: \u201cQ. Mrs. Qarrett, if you remember the amount of the note, state it; but if you don\u2019t, just state you don\u2019t remember it. A. I don\u2019t remember the amount of the note.\u201d (Appellant\u2019s counsel): \u201cQ. You don\u2019t know whether it amounted to $22.82 or $6.05, or what it was ? A. No. \u201d\nUpon the cross-examination of this witness she admitted that Cooke, appellee\u2019s agent, accompanied by R. W. Hendricks, came to her house to collect a premium, and she was asked if she told Cooke that her son, the- insured, would not permit her to pay any more on the premium, and that she was not going to pay any additional premium, and that he (Cooke) need not come back any more. She answered: \u201cI just told him I didn\u2019t want to pay it any more, but I didn\u2019t tell him any reasons.\u201d\nHendricks, who was called as a witness for appellant, testifying in regard to this visit, stated: \u201cMr. Cooke went up there and talked with her there and tried to get her to keep this policy on; and she wouldn\u2019t do it,\u201d and that appellant told Cooke that \u201cher son objected to it, and she couldn\u2019t carry the policy .any longer, that he wanted to build a new house.\u201d\nCooke was called as a witness for appellant, and lie stated that lie bad severed Ms connection with appellee more than a year before, and that he wrote the policy, which carried an annual premium of $22.82, or - $6.05 quarterly, that he made four visits to collect this premium, and that on one visit he was paid $3, which completed the payment of the premium for the first quarter, and that he was never able to collect mor\u00e9, and only $6.05 was ever paid by anyone on the premium.\nAppellant was not recalled to deny the testimony of Hendricks.\nWe have stated the substance of the material testimony tending to show that premiums were paid which would have continued the policy in force until the date of the insured\u2019s death, and we think the trial court was fully justified in concluding that there was no substantial testimony to sustain that contention.\nIt is insisted, however, that appellee waived nonpayment by sending appellant a \u201cNotice of Payment Due\u201d reading as follows:\n\u201cNotice of Payment Due\n\u201cPyramid Life Insurance 'Company of Little Rock, Arkansas\n\u201cHome Office -Statistical Information\n\u201cKS: Cooke Ark.-S. A.\n\u201cNo. 20306 Amt. 1,200 20 Pay Due on 30 Day of Sept. 1936.\n\u201cNotice of the Annual Premium \u2014 22.82 Life on the life of Mr. Tome J. Garrett % Mrs. Lizzie Garrett, Mt. Valley Route, Hot Springs, Arkansas. 22.80 Total.\n\u201cPlease return this notice with your remittance. Notify the company of any change of address.\n\u201cPlease remit direct to home office or branch office.\n\u201cMake all remittances payable to the company.\u201d\nThis contention may 'be disposed of by saying that the notice was received September 17, and the insured had died on the 12th, five days prior to its receipt. The complaint did not allege there had been a waiver, and the motion for a new trial is silent upon this question; indeed, the notice copied above does not appear to have been introduced to prove a waiver of the payment of premium but, rather, to show that the premium had in fact been paid.\nIn the case of Patterson v. Equitable Life Assurance Society, 112 Ark. 171, 165 S. W. 454, it was said: \u201cFurthermore, the death of Patterson fixed the rights of the parties to the insurance contract as they existed at that time, and any letter written by the appellee after Patterson\u2019s death, and without knowledge thereof, and addressed to him as though he were living, could not be considered as a waiver of appellee\u2019s rights under the insurance contract as they existed at the time of Patterson\u2019s death. At the time of the death of the insured, by reason of the nonpayment of the premium, the policy had lapsed, and he had been advised thereof, and only certain rights which involved affirmative action on his part remained to him, and of which he had not availed himself, and his death left only the right, by the very terms of the contract, to a paid-up policy of insurance for $900. The appellee, at the time of writing the letters, being ignorant of the death of Patterson, could not waive its-rights fixed by his death, even if the letters would have otherwise constituted a waiver. There can be no such thing as a waiver of rights without knowledge of the facts upon which such rights are based.\u201d The case of American Life Ass\u2019n v. Vaden, 164 Ark. 75, 261 S. W. 320, is to the same effect.\nWe conclude, therefore, that the trial court com.mitted no error in directing the jury to return a verdict for appellee, and the .judgment is affirmed.", "type": "majority", "author": "Smith, J." } ], "attorneys": [ "Talley & Talley and Wayne W. Oiven, for appellant.", "Verne. McMillen, for appellee." ], "corrections": "", "head_matter": "Garrett v. Pyramid Life Ins. Company.\n4-5267\n121 S. W. 2d 898\nOpinion delivered November 28, 1938.\nTalley & Talley and Wayne W. Oiven, for appellant.\nVerne. McMillen, for appellee." }, "file_name": "0193-01", "first_page_order": 209, "last_page_order": 215 }