{ "id": 1488169, "name": "Guardian Life Insurance Company of America v. Waters", "name_abbreviation": "Guardian Life Insurance Co. of America v. Waters", "decision_date": "1943-01-18", "docket_number": "4-6923", "first_page": "87", "last_page": "100", "citations": [ { "type": "official", "cite": "205 Ark. 87" }, { "type": "parallel", "cite": "167 S.W.2d 886" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "104 S. W. 2d 1062", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "193 Ark. 1080", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1411088 ], "opinion_index": 0, "case_paths": [ "/ark/193/1080-01" ] }, { "cite": "201 Ark. 634", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723215 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/201/0634-01" ] }, { "cite": "71 S. W. 2d 1049", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "189 Ark. 318", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1425584 ], "opinion_index": 0, "case_paths": [ "/ark/189/0318-01" ] }, { "cite": "71 S. W. 2d 199", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "189 Ark. 223", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1425490 ], "opinion_index": 0, "case_paths": [ "/ark/189/0223-01" ] }, { "cite": "55 S. W. 2d 788", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "186 Ark. 672", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724880 ], "opinion_index": 0, "case_paths": [ "/ark/186/0672-01" ] }, { "cite": "299 S. W. 366", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "175 Ark. 359", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1403590 ], "opinion_index": 0, "case_paths": [ "/ark/175/0359-01" ] }, { "cite": "54 A. L. R. 600", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "297 S. W. 847", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "174 Ark. 783", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724680 ], "opinion_index": 0, "case_paths": [ "/ark/174/0783-01" ] }, { "cite": "266 S. W. 289", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "166 Ark. 347", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1378560 ], "opinion_index": 0, "case_paths": [ "/ark/166/0347-01" ] } ], "analysis": { "cardinality": 1187, "char_count": 26408, "ocr_confidence": 0.507, "pagerank": { "raw": 1.0964568956422269e-07, "percentile": 0.5670013966065203 }, "sha256": "86cc0337e98f37791c8497d24db434d34e05cb8c4864f1003fc5ac6e17a1489c", "simhash": "1:9a0a83c657bbdc1d", "word_count": 4379 }, "last_updated": "2023-07-14T20:00:03.571044+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Guardian Life Insurance Company of America v. Waters." ], "opinions": [ { "text": "Grieein Smith, C. J.\nWe determine whether there was substantial evidence to sustain the trial court\u2019s finding that appellee should recover on a $2,000 policy of insurance executed December 30, 1911, on the life of appellee\u2019s husband, who died November 6, 1939.\nFrom 1926, when an initial loan of $500 was made, miscellaneous borrowings by the assured, plus interest and premiums (less dividends and $19.88 paid by the assured) left the assured\u2019s net obligation $1,086.83. There is a stipulation to that effect. The loan agreement of June 1, 1933, for $1,014.15 at five percent interest, is an exhibit. In case of default, interest was to be added to the loan, and in turn it bore interest at the principal rate.\nThere was the agreement that upon default in the payment of any premium, \u201c . . . the policy [shall] lapse and this loan, with accrued interest, if any, shall be deducted from the cash surrender value and the balance shall be applied as provided for in said policy.\u201d The table shows $990.20 as the maximum loan value, the policy being a \u201ctwenty-year pay\u201d \u2014 that is, premiums were not collectible after twenty annual payments had been made. Printed beneath the table there appears the following: \u201cValues for later years will be computed on the same basis and will be stated upon request.\u201d\nA policy provision is that if the assured, before attaining age sixty, should furnish proof satisfactory to the company that he had become wholly and permanently disabled, then, by indorsement on the policy, premiums would be waived.\nIn the original suit .filed August 1, 1940, appellee alleged payments of all premiums as they fell due. There was the assertion that on December 30, 1931, the policy became fully paid. Loans, it was conceded, amounted to $1,177.30, leaving a balance of $822.70, for which judgment was asked. In explanation of non-possession of the policy, the. plaintiff expressed a belief it had been delivered to the company as security.\nDefendant\u2019s answer itemized seven loans aggregating the balance of $1,086.83 heretofore referred to, and as justification for the declination to settle,, it alleged that the assured failed to pay either principal or interest. There was the averment that all dividends to which the assured-was entitled had been credited; that when interest due December 30, 1936, was not paid notice was mailed conveying the information that unless a remittance was received within the grace period of one month cancellation of the policy would result, and this would be in satisfaction of the loan, there being no additional cash surrender value.\nAppellee\u2019s reply to the answer, filed August 28, 1940, was coupled with an allegation that the assured \u201c . . . became and was mentally incompetent to transact business prior to June 12, 1933, [and continued so] until the date of his death.\u201d\nAppellant\u2019s demurrer of December 4, 1940, was overruled; whereupon answer was filed.\nThese pleadings are mentioned because they were not included in the original record, but were brought up in consequence of appellant\u2019s petition for certiorari. It was resisted on the ground that an amended and substituted complaint was filed. The date is not shown. However, summons is indorsed as of August 1, 1940.\nWe think appellant had a right to bring up the entire record, .and the clerk\u2019s writ was properly issued.\nWhen appellee married the assured he was employed by a Kansas City lumber company as bill clerk. Bertha L; Springer testified the assured was employed eighteen years by the company mentioned by appellee. After appellee married the assured he at first gradually became nervous. This attitude was accentuated as time went on. Substance of appellee\u2019s testimony, when read in connection with the testimony of .Dr. C. P. Cisco, was that the assured died from cancer of the intestines or liver. Hemorrhage was the immediate cause of death. In June, prior to her husband\u2019s death in November of the same year, appellee ascertained why he was subject to bleeding attacks.-\nAccording to appellee, her husband \u201ctried to do many things\u201d after he lost his position with the lumber company, but was unable to work. They came to Arkansas to operate a chicken ranch, but after two years it was sold, no profits having been realized. Appellee taught school in 1928 and 1929.\nIn 1929 appellee\u2019s husband returned to Kansas City and secured employment with a lumber company other than the one with which he had formerly been connected. The position lasted until August, 1930\u2014 slightly more than a year. His duties were similar to the old employment. Beginning with a salary of $115 per month, his compensation was increased to $125.\nProm Kansas City appellee and her husband went to Marshall, Mo., where they remained from August, 1930, until December. There Waters was employed by Metropolitan Life Insurance Company, but was transferred to Warrensburg, residing there until August, 1931. Thereafter the couple moved to Fayetteville where the assured operated a filling station for a year.\nIn August, 1932, the assured was employed by Watkins Produce Company. This connection continued until August, 1933. From December, 1933, until March, 1934, appellee\u2019s husband was employed on W, P. A. projects.\nMay 1, 1934, appellee and her husband purchased a restaurant at Booneville, Mo., and operated it two years. Appellee looked after the business during the day, while her husband managed it at night. He attended to sales, using a cash register; he also made out necessary orders.\nWhen the Booneville business failed, Waters moved with his wife to Windsor, Mo., \u201c . . . and opened another restaurant which [the assured] helped operate and stock.\u201d\nIn August, 1936, the assured returned to Kansas City. Appellee went to Washington county, Arkansas. Friends assisted appellee\u2019s husband in procuring a position as bookkeeper in Lawrence, Kansas. Appellee later joined her husband and remained with him until October 15, 1936. Friends again assisted them, and the assured was given a position in a boy scout camp at Osceola, Mo. This employment continued until May 1, 1937.\nAppellee first consulted a physician regarding her husband\u2019s \u201cnerves.\u201d This occurred the latter part of 1937. The assured was not bed-ridden, and until shortly before death was able to attend to his personal affairs, such as dressing, etc. Until shortly before death he conducted his own correspondence, writing ordinary business letters; but, thought the witness, these letters, at times, \u201cwere not like other competent people would write.\u201d Appellee\u2019s husband had $1,400 \u201cemployes\u2019 stock\u201d in Retail Lumber Yards at Kansas City. Because his business ventures were unprofitable the certificate was sold to meet necessary expenses. Appellee\u2019s summary was that her husband \u201c . . . could carry on a conversation all right, but his mind was not capable of sustained effort.\u201d\nL. E. Need had known Waters in 1927 and 1928. This witness conducted a service station and grocery business near Fayetteville. Waters was a customer who bought'gasoline and feed. He was \u201cfractious, nervous, and forgettable.\u201d\nErnest Crane married appellee\u2019s sister. He and appellee\u2019s husband jointly purchased the Washington county poultry ranch mentioned by appellee in her testimony. Waters was \u201cquite nervous\u201d in 1926:' he was irritated by small things. [Much of the testimony given by this witness was hearsay.]\nMrs. E. D. Crane, appellee\u2019s sister, observed transactions incident to the partnership business between her husband and the assured. When she and her sister sold eggs \u201cin town\u201d and bought groceries, \u201c . . . the bill for which they split fifty-fifty, Mr. Waters would get mad and insist that they could not keep books that way. . . .\u201d This witness thought her brother-in-law was having a nervous breakdown, \u201c . . . as he was not able to think things through [and] he let things irritate and disturb him.\u201d\nBertha L. Springer (a witness heretofore mentioned) testified by deposition that for many years Waters was \u201cstudious, conscientious, quiet, dependable, reliable, and did his work in an acceptable manner.\u201d She did not know when the change took place. However, because of unsatisfactory conduct, he was dismissed in 1926. His attitude reflected a nervous condition and irritability. There was the final statement that \u201che became decidedly incompetent.\u201d A change in the assured\u2019s \u201cdisposition\u201d made it necessary that he be dismissed. On cross examination this witness testified that Waters left in 1926 \u201c . . . for the reason that he had gotten married and wanted to go into the chicken business.\u201d\nDoctor C. P. Cisco first examined the assured July 17, 1939, The patient complained of abdominal pains and stated lie had suffered from dyspepsia and indigestion for two or three years; also, that he was nan-seated at times, and for several months had been unable to work. There were periods when he passed blood from the intestines. Physical examination disclosed that he did not have fever. The chest was normal, bnt Waters was emaciated. These and other symptoms justified a belief that the patient was afflicted with cancer of the liver \u201cwith'delusional insanity.\u201d\nA long hypothetical question was read to Dr. Cisco. With this question as a basis, the doctor was asked whether, in his opinion, the patient\u2019s mental condition from the time he lost his position with the lumber company until his death was such' that the assured was able to carry on the ordinary affairs of life:\u2014 \u201cthat is, whether his mind was capable of sustained effort so that he would comprehend such affairs as needed his attention.\u201d\nThe witness answered that, on the assumption statements contained in the question were true and that they constituted an exact history of the case, he would say that the assured had been mentally incapacitated since 1926.\nThe question was objected to because it did not state facts as reflected by the evidence. There were other grounds of objection which are not controlling.\n. By reference to the hypothetical question it will be observed that Dr. Cisco was told the assured was a dependable employe until March, 1926, and that he later became irritable, etc., \u201c . . . and his manner made it necessary to discharge him, since his mental attitude was different, and in his employer\u2019s' opinion he had become mentally incompetent.\u201d\nThe employer\u2019s testimony does not contain the statement that the assured was mentally incompetent. The witness was asked to explain Waters\u2019 personal appearance, his habits, conduct, and his manner when at work. The reply was: \u201cHe was studious, quiet, very conscientious, and did his work for years very acceptably. \u2019 \u2019\nThe next question was: \u201cWhile Mr. Waters was working for you, did you observe any change in his personal appearance, habits, and conduct, [and in] the character and quality of his work?\u201d Answer: \u201cYes. He became very nervous and irritable, and not dependable ; slighted his work, and made it necessary to replace him. [I] cannot recall just when the change took place.\u201d\nDescribing her observations after the \u201cchange\u201d came over Waters, the witness said: \u201cHe was careless and his work was such we could not depend on him; and his manner in the office made it hard for office associates.\u201d When asked the direct question whether, in her opinion, Waters was mentally competent to carry on his work \u201cat the time you let him go in 1926\u201d, the witness answered: \u201cI am positive his mental attitude was altogether different from what it was when he came with the compaiw. Had it not changed, we would not have dispensed with his services. . . . However, his disposition had so completely changed it was necessary for us to make a change. He had become decidedly incompetent, and not at all as he was when he came with our company.\u201d\nWhile it is true the witness testified that Waters\u2019 mental attitude had changed, there was the further statement that his disposition had \u201ccompletely changed.\u201d She then said that he became \u201cdecidedly incompetent.\u201d If it be contended that inferentially the witness testified that the assured became mentally incompetent, the fact remains that she did not expressly do so. An involved hypothetical question is ordinarily susceptible of more than one construction; lienee, words favorable to the party in whose behalf such question is propounded should not be stronger than those actually employed by the witness whose testimony forms the basis of a particular assertion from which a conclusion of fact is to be drawn.\nIt is also to be questioned whether net result of the witness Springer\u2019s testimony sustains her statement on direct examination that Waters was discharged. On cross examination (in response to the question, \u201cWhat was the reason Mr. Waters quit your employment in 1926?\u201d) she replied: \u201cHe had gotten married and he wanted to go into the chicken business.\u201d\nThere is little of value in the testimony of witnesses other than appellee and Dr. Cisco; and, since the doctor was asked an improper qu\u00e9stion, his reply must be disregarded.\nWere the circumstances and acts described by appellee sufficient to sustain recovery?\nAs late as 1933 the assured wrote the company regarding his financial condition and asked time for pay- . ment of a small balance. He emphasized insurability, saying: \u201cI am physically fit and can pass a medical examination in fine shape.\u201d Of course, a man mentally incompetent could assert his wellbeing, and if in fact insanity then existed, the declaration would not be prejudicial.\nBut the question is, Was he mentally incompetent ?\nThe 1933 letter of April 10 was in response to one written by the company April 7 in which the assured was told there remained, unpaid, interest due December 30, 1932, on the outstanding loan then amounting to $984. There was a request for payment of $49.20. Waters\u2019 reply was from Siloam Springs. It is printed in the margin.\nMay 5, 1937, the company wrote Waters at West Fork (Washington county, Ark.). This registered letter is copied in the footnote. Exhibit \u00a3