{ "id": 1727420, "name": "Avemco. Life Ins. Co. v. Luebker", "name_abbreviation": "Avemco. Life Ins. v. Luebker", "decision_date": "1966-02-21", "docket_number": "5-3790", "first_page": "349", "last_page": "354", "citations": [ { "type": "official", "cite": "240 Ark. 349" }, { "type": "parallel", "cite": "399 S.W.2d 265" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "209 Ark. 945", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1475743 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/209/0945-01" ] }, { "cite": "101 S. W. 2d 781", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "193 Ark. 572", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1411012 ], "opinion_index": 0, "case_paths": [ "/ark/193/0572-01" ] }, { "cite": "32 S. W. 2d 310", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "182 Ark. 496", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1389754 ], "opinion_index": 0, "case_paths": [ "/ark/182/0496-01" ] }, { "cite": "219 Ark. 834", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1609110 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ark/219/0834-01" ] }, { "cite": "232 Ark. 348", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1694159 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ark/232/0348-01" ] } ], "analysis": { "cardinality": 507, "char_count": 7910, "ocr_confidence": 0.488, "pagerank": { "raw": 1.0966936953989986e-07, "percentile": 0.567062597085776 }, "sha256": "e475083d43642d8f7ebb0051c5da57f3e340e0728da6cb4f3e3adbfcf76d62a0", "simhash": "1:9b54f6d0f67cb98a", "word_count": 1313 }, "last_updated": "2023-07-14T18:11:15.698686+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Avemco. Life Ins. Co. v. Luebker" ], "opinions": [ { "text": "Osro Cobb, Justice.\nUpon trial to a jury, appellee recovered judgment against appellant for total disability benefits under a certain sick and accident policy issued to appellee by appellant. For reversal appellant urges the following four points:\nNo. 1. The verdict is not supported by the evidence.\nNo. 2. In the alternative, the appellee is at most partially disabled and the judgment should be reduced accordingly.\nNo. 3. It was error for the court to give plaintiff\u2019s requested Instruction No. 3.\nNo. 4. It was error for the court to give plaintiff\u2019s requested Instruction No. 4.\nAppellant\u2019s Points 1 and 2 relate to the evidence and we discuss these points jointly.\n\u2022The record reflects that appellee\u2019s disabilities stem from injuries to his back while lifting a heavy sack of farm produce and from chronic inflammation of the veins of his legs. On three occasions blood clots have broken loose in the diseased veins, resulting in pulmonary embolisms that endangered the life of appellee. Appellee\u2019s doctors testified that his condition is inoperable because of the grave risk as to his survival. Indeed, it appears that his survival now depends upon maintaining a delicate balance as to his over-all activities. Complete inactivity is contra-indicated for his serious circulatory problem, and over-activity is likewise contra-indicated as it could cause further blood clots to break loose and enter appellee\u2019s blood stream. Appellee and his wife were the only witnesses to testify concerning appellee\u2019s actual activities during the period involved in this action. This testimony was to the general effect that appellee had been forced by his physical condition to surrender the entire management of his farm enterprises to his sons; that his sole contribution to the operation of the farm properties was that of signing the notes for the necessary financing for the farm operations ; that under the advice of his attending physicians he took short walks interspersed with rest, short trips in his farm truck, usually driven by his wife, went to church each week and attended lodge meetings. Appellee further testified that he was totally disabled from performing his customary duties in relation to the operation of his farm properties.\nAppellant produced no witnesses to traverse the appellee\u2019s testimony as to his activities during the period of time here involved.\nAppellee\u2019s contentions as to his total disability as to the performance of his usual and customary duties in operating his farm properties were well supported by the testimony of his physicians. Dr. Joseph Buchman, of Little Rock, a physician and surgeon, testified:\n\u201cHe [appellee] could not perform the usual and customary work as I know it, he just couldn\u2019t do it.\u201d (Tr. 38)\nOn cross examination, Dr. Buchman testified:\n\u201cYes, sir, I would say as for a farmer though he [appellee] is 100% disabled.\u201d (Tr. 41)\nThere was much other evidence introduced in support of appellee\u2019s contentions as to his total disability but we do not deem it necessary to relate same in this opinion.\nWe have concluded that there was substantial evidence adduced in this case to support the verdict of the jury. This holding is consistent with our previous holdings in Alexander v. Mutual Benefit Health & Accident Assoc., 232 Ark. 348, 336 S. W. 2d, 64; Franklin Life Insurance Co. v. Burgess, 219 Ark. 834, 245 S. W. 2d 210; Aetna Life Insurance Co. v. Spencer, 182 Ark. 496, 32 S. W. 2d 310; Monarch Life Insurance Co. v. Riddle, 193 Ark. 572, 101 S. W. 2d 781.\nAppellant\u2019s Point No. 3\nAppellant urges that any proper instruction as to total disability should contemplate such a state of disability as to prevent the insured from performing all (rather than any) of the substantial and material acts necessary to the prosecution of his business. In earlier cases decided by this court we substantially followed the position taken by appellant. However, in more recent cases we have approved such an instruction as that given by the court in this case, using the word \u201cany.\u201d See Franklin Life Insurance Co. v. Burgess, supra; Alexander v. Mutual Benefit Health & Accident Assoc., supra. We adhere to the more liberal rule and approve the instruction as given.\nWe therefore conclude that the contentions of appellant as to Point No. 3 are without merit. In doing so, we have not overlooked contentions of appellant with reference to the clause in the subject policy as to personal escort, same having been fully set forth in appellant\u2019s own Instruction No. 4 which was given by the court.\nAppellant\u2019s Point No. 4\nThe challenged Instruction follows:\n\u201cIf you find from the testimony that Plaintiff Albert Luebker, was advised by reputable physicians that, in the treatment of his condition, it was desirable for him to do a reasonable amount of walking and it was permissible for him to drive a motor vehicle for short distances, and that by virtue of this advice he walked approximately % of a mile a day, around his farm, and that he sometimes drives his pickup truck from his home for distances ranging from a few hundred yards to a mile to carry lunch to his two sons at such times as they are working in the fields and that on a few occasions he went driving alone from his farm to Stuttgart and once or twice to England, you are instructed that such activity on the part of the plaintiff, Albert Luebker, would not be in conflict with the definition of \u201ctotal disability\u201d as given in said policy and plaintiff, Albert Luebker, would be entitled to recover on said policy, even though he may have engaged in snoh activities, provided he has complied with the other terms and conditions of the policy. \u2019 \u2019\nThis Instruction has given the court considerable concern. It is patterned to a large extent after an instruction approved by us in Mutual Benefit Health & Accident Assoc. v. Murphy, 209 Ark. 945, 193 S. W. 2d 305. This Instruction, however, is more loosely written than the one approved in the Murphy case, supra.\nIt will be noted in reviewing subject Instruction that all of the detailed acts of appellee referred to in the latter portion of the Instruction are clearly activities which are embraced Avithin the general scope of the recommended activities for appellee in the uncontradicted testimony of his attending physicians. While all of the activities enumerated in the Instruction stayed Avell within the general scope of such recommended activities, some were those testified to by appellee and Avere not specifically set forth by the physicians in their testimony. We think it would have been better for the Instruction to have been so Avorded as to confine same, in relation to the evidence in the case, to the recommendations of the attending physicians as to appellee\u2019s activities; the attempted or actual performance of such recommended activities by appellee; and the legal effect of performing such activities in relation to his claim for total disability benefits under the provisions of his insurance policy.\nWe have concluded, Avith very considerable reluctance, and largely because of the Murphy case, supra, that the giving of this Instruction did not constitute reversible error. The bar will take notice, however, that cases tried subsequent to this opinion will be examined by us in the light of the recommendations herein contained.\nHaving found no error in the trial of this case warranting a reversal thereof, judgment of the lower court is affirmed.\nAn attorney\u2019s fee in the sum of $300 is awarded to appellee\u2019s counsel for services in connection with the appeal in this court, same to be taxed as part of .the cost as provided in Ark. Stat. Ann. \u00a7 66-3238 (Repl. 1966).\nAffirmed.", "type": "majority", "author": "Osro Cobb, Justice." } ], "attorneys": [ "Smith, Williams, Friday & Boioen and Boyce Tt. Love, for appellant.", "McMath, Leatherman, Woods & Youngdahl and A. E. Townsend, Jr., for appellee." ], "corrections": "", "head_matter": "Avemco. Life Ins. Co. v. Luebker\n5-3790\n399 S. W. 2d 265\nOpinion delivered February 21, 1966\nSmith, Williams, Friday & Boioen and Boyce Tt. Love, for appellant.\nMcMath, Leatherman, Woods & Youngdahl and A. E. Townsend, Jr., for appellee." }, "file_name": "0349-01", "first_page_order": 373, "last_page_order": 378 }