{ "id": 1470271, "name": "DeSoto Life Insurance Company v. Jeffett", "name_abbreviation": "DeSoto Life Insurance v. Jeffett", "decision_date": "1948-02-02", "docket_number": "4-8411", "first_page": "798", "last_page": "803", "citations": [ { "type": "official", "cite": "212 Ark. 798" }, { "type": "parallel", "cite": "207 S.W.2d 743" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "215 S. W. 641", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "140 Ark. 73", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1594457 ], "opinion_index": 0, "case_paths": [ "/ark/140/0073-01" ] }, { "cite": "238 S. W. 613", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "152 Ark. 442", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1364103 ], "opinion_index": 0, "case_paths": [ "/ark/152/0442-01" ] }, { "cite": "10 S. W. 2d 362", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "178 Ark. 235", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1396918 ], "opinion_index": 0, "case_paths": [ "/ark/178/0235-01" ] }, { "cite": "261 S. W. 24", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "164 Ark. 137", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1382151 ], "opinion_index": 0, "case_paths": [ "/ark/164/0137-01" ] }, { "cite": "224 S. W. 609", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "145 Ark. 269", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1586156 ], "opinion_index": 0, "case_paths": [ "/ark/145/0269-01" ] }, { "cite": "195 S. W. 13", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "129 Ark. 95", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1580481 ], "opinion_index": 0, "case_paths": [ "/ark/129/0095-01" ] }, { "cite": "135 S. W. 822", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "98 Ark. 61", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1315922 ], "opinion_index": 0, "case_paths": [ "/ark/98/0061-01" ] }, { "cite": "87 S. W. 646", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "75 Ark. 347", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1502548 ], "opinion_index": 0, "case_paths": [ "/ark/75/0347-01" ] }, { "cite": "209 Ark. 945", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1475743 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/209/0945-01" ] }, { "cite": "197 Ark. 221", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719228 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/197/0221-01" ] }, { "cite": "94 S. W. 2d 722", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "192 Ark. 749", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1414897 ], "opinion_index": 0, "case_paths": [ "/ark/192/0749-01" ] }, { "cite": "210 Ark. 371", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720501 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/210/0371-01" ] } ], "analysis": { "cardinality": 508, "char_count": 8525, "ocr_confidence": 0.509, "pagerank": { "raw": 6.034489097263531e-08, "percentile": 0.3738019089143807 }, "sha256": "e1e0fca1c77a969672101c9d3264eebabc0746c2e270f014825a5318d2f43d0f", "simhash": "1:bb2fc8a113d69e8a", "word_count": 1454 }, "last_updated": "2023-07-14T15:01:33.594173+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DeSoto Life Insurance Company v. Jeffett." ], "opinions": [ { "text": "Minor W. Millwee, Justice.\nThis is an action by appellee, Dr. W. F. Jeffett, against appellant, DeSoto Life Insurance Co., to recover monthly total disability benefits for the period from October 1, 1946, to April 1, 1947, under a health and accident insurance policy.\nAppellee had previously brought suit in the circuit court on a like claim, but for a different period, and obtained judgment against appellant which was affirmed by this court on July 8, 1946, in the .case of DeSoto Life Insurance Company v. Jeffett, 210 Ark. 371, 196 S. W. 2d 243. On the former appeal it was adjudicated that appellee was totally disabled from practicing his profession of dentistry as a result of an accidental injury. There was evidence on the former trial that appellee sustained an injury to the right side of his face from the severe \u201ckick\u201d or recoil of a shotgun he was firing while on a hunting expedition. Medical testimony on the former appeal was to the effect that the accidental injury re-suited in paralysis of the seventh facial nerve, a condition'known as Bell\u2019s palsy. The condition prevented a closing of the right eyelids and concentration of vision at close range caused an excessive secretion of tears and blurring of vision which prevented appellee from performing the substantial duties of his profession.\nIn support \u00f3f the allegations of his complaint in the instant case appellee introduced certified copies of the complaint and judgment entered thereon at the former trial. Appellee again gave an account of the nature and results of the injury and testified that he had been unable to do any kind of dental work since he closed his office in August, 1945. Dr. A. W. Cox, an eye specialist who has attended appellee since the date of the accident, repeated his testimony given at the former trial concerning the nature and extent of the injury to appellee and stated that there had been no improvement in his condition since the first trial, and that he was still disabled to perform any of the duties of a dentist. Another specialist who examined appellee three times in 1945 and twice in 1946 corroborated the testimony of Dr. Cox and stated that the disability, in his opinion, \u00a1would continue indefinitely.\nOpposed to this testimony was that of three specialists who had either examined or observed examinations made of appellee on October 25, 1946, and February 3, 1947. They testified that the spastic condition in the right side of appellee\u2019s face5 was not caused by an injury to the seventh cranial nerve or, if so, that the condition had cleared up; that Bell\u2019s palsy, or paralysis of the seventh nerve, would cause the side of the face to sag instead of being drawn up as is appellee\u2019s; that they did not observe any excessive lachrymation in appellee\u2019s eye; that appellee had high blood pressure and that the tenseness in the right side of the face might have been caused by his general nervous-condition. Appellee was in essentially the same condition at the time of both examinations. Two of these witnesses were of the opinion that appellee was able to practice all phases of dentistry at the time of the trial while the other thought he could perform at least a part of such duties.\nThe issues were submitted to a jury and a verdict returned in favor of appellee for $1,200, the amount for which he sought recovery. The judgment entered on the jury\u2019s verdict included the statutory penalty of 12% and attorney\u2019s fees.\nAppellant\u2019s first contention for reversal of the judgment is that the evidence is insufficient to establish total disability of appellee. Appellant argues that the testimony not only shows that appellee was not totally disabled for the six-month period involved in the present action but also that he was not disabled from the injury claimed during the period for which he recovered judgment in the former action. This contention necessitates a consideration of the effect of the former adjudication.\nIn the case of Equitable Life Assurance Society v. Bagley, 192 Ark. 749, 94 S. W. 2d 722, it had been determined on a former appeal that appellee, Bagley, was totally disabled within the meaning of the policy on August 19, 1933, and for a time prior to that date. It was held that the finding of fact of -total disability on August 19, 1933, on the first trial was conclusive and binding on the second appeal. Chief Justice Johnson, speaking for the court, there said:\n\u201cSince we are concluded by the former opinion on the question of appellee\u2019s total disability on August 19, 1933, the legal query arises, what presumption attends such finding on future circumstances?\n\u201cThe rule seems to be that, in the absence of proof to the contrary, it must be presumed that appellee was totally disabled on August 20, 1933, and at all times subsequent thereto unless and until it is made to appear affirmatively, by testimony, that appellee has recovered subsequent to the former adjudication. See 10 R. C. L., p. 872, \u00a7 15. ' \u2022\n\u201cIn view of the stated declaration of law it follows that, after appellee introduced in evidence the testimony supporting the former adjudication, the burden shifted to appellant to establish by a preponderance of the testimony that appellee had recovered from total disability subsequent to the former adjudication . .\nThe rule announced in the Bagley case was approved and followed in United Fidelity Life Ins. Co. v. Dempsey, 197 Ark. 221, 122 S. W. 2d 170. An instruction embodying these principles was approved in the recent case of Mutual Benefit Health & Accident Ass\u2019n v. Murphy, 209 Ark. 945, 193 S. W. 2d 305.\nThe judgment obtained by appellee at the former trial was entered on November 14, 1945. The complaint and judgment rendered at the former trial were admissible in evidence as proof of the existence of disability at that time. When certified copies of these were introduced by appellee, this constituted a conclusive showing of total disability at the time of the rendition of the former judgment and gave rise to a rebuttable presumption that it continued in the future and shifted the burden to the company to go forward and show by a preponderance of the evidence that the condition no longer existed. As stated in the Bagley case: \u201cIt may be that the former adjudication was wrong in principle, and in fact, but nevertheless it is an established precedent and must be treated as such. \u2019 \u2019\nThe question, therefore, for the jury\u2019s determination was whether appellee had, subsequent to the former adjudication, sufficiently .recovered to perform the substantial and material acts necessary to the prosecution of his profession. This question was submitted to the jury upon conflicting medical .testimony. When the evidence on this issue is considered in the light most favorable to appellee, we find it substantial and sufficient to support the verdict of the jury.\nAppellant also assigns as error the action of the trial court in refusing to give its requested instruction No. 2, which is set out in appellant\u2019s brief. It is contended that the refused instruction contains a correct definition of \u201ctotal disability\u201d which does not appear in any of the instructions given. But appellant has not set out any of the instructions given by the trial court and we must indulge the presumption that the trial court correctly instructed the jury and that the refused instruction, although found to he correct, was covered by others given. Carpenter v. Hammer, 75 Ark. 347, 87 S. W. 646; DeQueen & Eastern Ry. Co. v. Thornton, 98 Ark. 61, 135 S. W. 822; Greenville Stone & Gravel Co. v. Chaney, 129 Ark. 95, 195 S. W. 13; Covill v. Gerschmay, 145 Ark. 269, 224 S. W. 609; F. Kiech Manufacturing Co. v. James, 164 Ark. 137, 261 S. W. 24; Hethcox v. Stewart, 178 Ark. 235, 10 S. W. 2d 362. In Loose-Wiles Biscuit Co. v. Jolly, 152 Ark. 442, 238 S. W. 613, the court said: \u201cError is assigned in the refusal of the court to give certain instructions requested by the defendant, which are set out in the brief. But, inasmuch as all the instructions are not set out, we must assume that the points raised in the instructions which were refused were covered in the instructions \u2019which were given.\u201d The reasons supporting this rule are set out in U. S. Auto Co. v. Arkadelphia Milling Co. 140 Ark. 73, 215 S. W. 641, and will not be repeated here\nFinding no error, the judgment is affirmed.", "type": "majority", "author": "Minor W. Millwee, Justice." } ], "attorneys": [ "E. J. Butler, for appellant.", "Dinning 8s Dinning, for appellee." ], "corrections": "", "head_matter": "DeSoto Life Insurance Company v. Jeffett.\n4-8411\n207 S. W. 2d 743\nOpinion delivered February 2, 1948.\nE. J. Butler, for appellant.\nDinning 8s Dinning, for appellee." }, "file_name": "0798-01", "first_page_order": 814, "last_page_order": 819 }