{ "id": 1488207, "name": "American Republic Insurance Company v. Burks", "name_abbreviation": "American Republic Insurance v. Burks", "decision_date": "1943-01-25", "docket_number": "4-6934", "first_page": "160", "last_page": "163", "citations": [ { "type": "official", "cite": "205 Ark. 160" }, { "type": "parallel", "cite": "167 S.W.2d 885" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "24 Ark. 137", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726499 ], "opinion_index": 0, "case_paths": [ "/ark/24/0137-01" ] }, { "cite": "213 S. W. 383", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "139 Ark. 236", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1596359 ], "opinion_index": 0, "case_paths": [ "/ark/139/0236-01" ] }, { "cite": "118 Am. St. Rep. 52", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "100 S. W. 764", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "82 Ark. 86", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1529088 ], "opinion_index": 0, "case_paths": [ "/ark/82/0086-01" ] } ], "analysis": { "cardinality": 433, "char_count": 5815, "ocr_confidence": 0.512, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.05574823088141432 }, "sha256": "7516f9f154b5ab123527b0540964ccbc148ec1cdf45ad93646eb750c6245b2da", "simhash": "1:78eb7099054659d6", "word_count": 994 }, "last_updated": "2023-07-14T20:00:03.571044+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "American Republic Insurance Company v. Burks." ], "opinions": [ { "text": "G-rieein Smith, C. J.\nDr. James A. Burks was injured between nine and half past nine o \u2019clock the morning of December 16, 1941, when an automobile he was driving went into a ditch. He died four days later.\nDecember 7 Dr. Burks applied to appellant for insurance. A policy dated December 20 came into appellee\u2019s hands after her husband\u2019s death. With it was a letter, material parts of which are copied in the margin.\nThe application, by its terms, was made a part of the policy, and the two, by express language, constituted the entire contract. Falsity of any answer material to the risk barred recovery.\nThe company declined to pay because, as it contended, the assured died from heart disease for which he had been treated within the period of five years mentioned in the policy. On this phase of the controversy there was conflicting testimony and the court did not err in submitting the issue to a jury. The company also denied the policy was delivered while the assured was in good health.\nControlling, we think, is the concurrence of two facts: (a) the policy provision that it should not become effective unless delivered to and received by the assured while he was in good health, and (b) the serious injury received by Dr. Burks not later than 9:30 the morning of December 16. There was no substantial evidence to sustain the contention that the policy reached the assured before he left home in the automobile between 7:30 and 8:30 to drive from Benton to Traskwood.\nTwo witnesses told of transactions from which it is insisted an inference arose that the policy had been delivered prior to December 16. C. H. Womack testified that a man \"called at his place\u201d looking for Dr. Burks. This unknown said he wanted to see Dr. Burks about an insurance policy. He then asked whether the doctor was \"reliable and a good prospect.\u201d The witness thought this conversation occurred the day before or the day after Dr. Burks was injured.\nCharles Moody was in Dr. Burks\u2019 office a day preceding the accident. Someone walked in and said, \"Here is your policy.\u201d The stranger handed a paper to Dr. Burks and talked with him. Moody saw a corner of the paper. A question by one of appellee\u2019s attorneys was, \u201cYou mean this blue border?\u201d Tbe witness answered affirmatively. Tbe next question was: \u2018 \u2018 This could have been tbe policy?\u201d Answer, \u201cYes, sir.\u201d Moody, on cross examination, admitted he did not know what insurance company the visitor represented; nor could he identify the instrument, or paper, given the doctor.\nIt is argued on behalf of appellee that appellant\u2019s policy was the only one any company had issued to Dr. Burks. This belief is based upon Mrs. Burks\u2019 testimony that in going through the doctor\u2019s possessions no other policies were found; hence, say counsel, the Moody testimony' that someone handed Dr. Burks an envelope from which he took a blue-bordered paper, a \u201ccorner\u201d of which was revealed, coupled with the stranger\u2019s comment that \u2018\u00a3 Here is your policy, \u2019 \u2019 creates an inference of fact upon which the jury was justified in finding that the policy received by appellee after her husband\u2019s death was the one delivered by the stranger.\nInfirmity of this contention is that the conclusion arises from speculation. Failure of Mrs. Burks to find other policies is at most only a circumstance. This testimony .is not undisputed, the witness being the interested party. Skillern v. Baker, 82 Ark. 86, 100 S. W. 764, 118 Am. St. Rep. 52, 12 Ann. Cas. 243; Salmon v. Boyer, 139 Ark. 236, 213 S. W. 383. [Compare Schaer v. Gliston, 24 Ark. 137].\nEvidence on behalf of appellant was that twenty-two applications were approved December 15 by the company\u2019s medical advisor. These, with two others, were sent to Little Rock Blue Print Company where reproductions were made.' Included in the list was Dr. Burks\u2019 application. The blue print company\u2019s invoice was dated December 17. The insurance company did not send its policies out without having attached to them a photostatic reproduction of the application. Issuing dates were the first, tenth, and twentieth of each month. Dr. Burks \u2019 policy was completed December 17 and dated the 20th. It did not leave the company\u2019s office until after the 16th.\nWe do not decide whether the company\u2019s statement in its letter, \u201cNow that you have received your 'policy,\u201d etc., would estop it to deny the insurance if in fact the policy and letter (which seem to have been mailed together) had been received before Dr. Burks was injured.\nIf we disregard the company\u2019s testimony and look only to that presented on behalf of appellee \u2014 and in view of the jury\u2019s verdict this must be done \u2014 result is that there is no evidence of a substantial nature establishing delivery of the policy before Dr. Burks was injured. It follows that the judgment must be reversed, and this is done. The cause is dismissed.\nThe letter, in part, follows: \u201cEnclosed please find policy you applied for. ... We wish to thank you for your valuable business. . . . Now that you have received your policy, be proud of it. Keep it in force at all times, for as you know, there are many people rejected by insurance companies because tliey are neither physically nor financially able to carry a policy, similar to the one issued to you. . . . Again expressing our appreciation for your business, we are,\u201d etc. [The caption was \u201cre your next premium, $21, will he due March 20, 1942.\u201d Date was \u201cLittle Rock, Ark., December 16, 1941\u201d]\nThe policy became effective at noon of the day delivered and accepted.\nThe policy was printed on white paper with a large blue border.\nA second copy is retained by appellant.", "type": "majority", "author": "G-rieein Smith, C. J." } ], "attorneys": [ "Ernest Briner and M. J. Harrison, for appellant.", "McDaniel, Crow and Ward, for appellee." ], "corrections": "", "head_matter": "American Republic Insurance Company v. Burks.\n4-6934\n167 S. W. 2d 885\nOpinion delivered January 25, 1943.\nErnest Briner and M. J. Harrison, for appellant.\nMcDaniel, Crow and Ward, for appellee." }, "file_name": "0160-01", "first_page_order": 180, "last_page_order": 183 }