STATEMENT BY THE COURT

Appellant seeks to reverse a judgment against it in favor of appellee for an amount alleged to be due upon a life and health insurance policy. The record shows that the policy of insurance was issued on July 21, 1923, and that the policy was in full force and effect when the suit was brought on October 24, 1929. At the date of the trial on March 11, 1930, it was stipulated that the policy of insurance was valid, and that the policy was in full force and effect. It was agreed that the only question at issue was whether or not total permanent disability existed under the policy.

The total and permanent disability provision in the policy reads as follows: "If the insured becomes totally and permanently disabled and is thereby prevented from performing any work, or conducting any business for compensation or profit, or has met with the irrecoverable loss of the entire sight of both eyes, or the total and permanent loss by removal or disease of the use of both hands or of both feet, or of such loss of one hand and one foot, and satisfactory evidence of such disability is received at the home office of the company, the company will, if there has been no default in the payment of premiums, waive the payment of all premiums falling due during such disability after the receipt of such proof.

"If such disability existed before the insured attained the age of sixty years, the company will pay to the beneficiary the sum of ten ($10.00) dollars for each one thousand ($1,000) dollars of the sum insured, and will pay the same sum on the same day of every month thereafter during the lifetime and the continuance of such disability of the insured, the first payment to be come due on receipt at said home office of satisfactory evidence of such disability.

"If before attaining the age of sixty years the insured becomes totally disabled by bodily injuries or disease and is thereby prevented from performing any work or conducting any business for compensation or profit for a period of ninety consecutive days, then, if satisfactory evidence has not been previously furnished that such disability is permanent, such disability shall be presumed to be permanent within the meaning of this provision."

Dr. J. B. Trice, a graduate physician of twenty-five years' experience, testified that he had known the insured, Elijah W. Spencer, for fourteen years; that he examined him in the summer of 1928 and found him suffering from the diseases of sacroiliac arthritis and sciatic neuritis; that sacroiliac arthritis means a stiffening of the joints in the pelvis, and that sciatic neuritis means inflammation off the sciatic nerve; that this condition is painful and disabling, particularly to a man who is heavy in weight and up in years; that sciatic neuritis affects the sciatic nerve, the longest nerve in the body which runs from the hip to the heel; that it impairs this nerve; that appellee had been suffering from this condition for about two years, and that he regards appellee's disability as being permanent; that he thinks appellee is permanently and totally disabled, and that a man totally disabled is one who cannot work.

Elijah W. Spencer was a witness for himself. According to his testimony, he is sixty-one years of age in January, 1930. He had been engaged in the truck and produce business since 1907, and before that time had taught school and farmed. He had spent his whole life in Crawford County, Arkansas. He had been suffering for several years but since the latter part of July, 1928, his diseases had disabled him so that he could not do anything at all. Before that time he had been doing a little work, but after this time he could not use his hands to do anything with. On his right hand, his fingers are numb up to the second joint. He has no feeling in his arm, and most of the time it feels like he has struck it against some sharp corner. He is hardly able to work. He can feed himself with his right arm, but is not able to lift anything with it or to do any work with it. On account of his hip, he cannot sit down on a box without something to lean against. He can walk, but it is hard to do so. He has not been able to carry on his business since the first of August, 1928. On this account he had to take his two boys in the business with him. Prior to the time that he became disabled from the diseases above referred to, he had done all kinds of work connected with his business. He was on the street and bought all the produce which was handled, helped pack it and helped to load and unload it. He was at his place of business all the time and assisted in every department of it. Since his disability, he has not been able to do anything except to sit around in his place of business a part of the day and answer the telephone. His sons advise with him about the conduct of the business and about the sales of the produce. Sometimes he buys produce which is brought in wagons to his place of business.

Mark Spencer, a son twenty-nine years of age, was also a witness for the appellee. According to his testimony, his father had not been able to actively assist in carrying on the business since the first of August, 1928. Prior to that time, he wrote all the checks, did practically all the buying, and was out on the street buying produce. He would help to load and unload trucks, but has not been able to do any of these things since August, 1928. He comes into the office at irregular periods of time during the day, but is not able to actively assist in carrying on the business.

Other witnesses testified that they had not seen appellee doing any work at all during the last two years. He had been at his place of business, but would just drag around with a stick in his hand.

HART, C.J.

(after stating the facts). Evidence was introduced by appellant tending to show that appellee was not totally disabled and also that his disability was not permanent; but, inasmuch as the verdict of the jury must be tested by the evidence in the light most favorable to appellee, we need not abstract the testimony for appellant. Under our settled rules of practice, if there is any evidence of a substantive character to support a verdict, it cannot be disturbed upon appeal.

Contracts of insurance should receive a reasonable construction so as to effectuate the purposes for which they are made. In cases where the language used is ambiguous, it should be construed in favor of the insured because the policy is written on forms prepared by the insurer. Of course, legal effect should be given to all the language used, and the object to be accomplished by the contract should be considered in interpreting it.

The disability clause has been copied in our statement of facts and need not be repeated here. Total disability is generally regarded as a relative matter which depends largely upon the occupation and employment in which the party insured is engaged. This court has held that provisions in insurance policies for indemnity in case the insured is totally disabled from prosecuting his business do not require that he shall be absolutely helpless, but such a disability is meant which renders him unable to perform all the substantial and material acts of his business or the execution of them in the usual and customary way. Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417, 127 S.W. 457, 29 L.R.A. (N.S.) 635, 21 Ann. Cas. 1029; Brotherhood of Locomotive Firemen Enginemen v. Aday, 97 Ark. 425, 134 S.W. 928; and Aetna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S.W. 335.

Thus it will be seen that our court makes no distinction between accident policies and life insurance policies containing total disability clauses. The construction placed upon policies of this sort follows the general trend of authority in the United States. Case Notes to 41 A.L.R. at 1376; 37 A.L.R. at 151; 24 A.L.R. at 203; and 7 Ann. Cas.,

It only remains to apply the principles to the facts of the present case. While, as above stated, the evidence was conflicting, still the evidence introduced on the part of the appellee warranted the jury in finding that he was totally and permanently disabled within the meaning of the terms of the policy under consideration. The object to be accomplished was to indemnify the insured for loss of time for being wholly disabled from prosecuting his business. It has been well said that, if the language used was to be construed literally, the insurer would be liable in no case unless the insured should lose his life or his mind. Of course, as long as he is in possession of his mental faculties, he is capable of transacting some part of his business; but, as we have already seen, he was not able to prosecute his business within the meaning of the policy unless he was able to do all the substantial acts necessary to be done in its prosecution. The very purpose of obtaining the policy was to indemnify him in case he should become disabled, so that he could not carry on his business. In the present case, the premiums were paid and the policy kept up by the insured according to its terms until his disability occurred.

It is fairly inferable from the evidence introduced in favor of appellee that he was no longer able to carry on his business after about the first of August, 1928. His condition at that time became so that he could not attend to any of the duties of his business except to advise about the sales and purchases of produce. Before that time he was able to go about the streets and purchase produce from the various wagons where he might find them. After his disability he could only purchase produce from wagons which came to his place of business. Even then he could not handle the produce and examine it with his hands. He could only walk with great difficulty and suffered constant pain. His right hand was numb, and he could no longer assist in keeping his books or in helping to sort out vegetables or in loading and unloading produce. In order to conduct his business successfully, it was necessary that he should do all these things. His business was such that he could not profitably conduct it by merely superseding it and hiring others to perform the work. His disability necessitated him to take his two sons in partnership with him in order to successfully carry on the business. His loss in this respect was the very object of taking out the insurance. Hence, when the character of the business, together with the attendant circumstances, is considered, we are of the opinion that reasonable minds might reach the conclusion that the insured was totally and permanently disabled within the meaning of the policy as above defined, and that the jury was warranted in finding a verdict in his favor.

After the judgment was rendered, a motion was filed on behalf of appellee for the allowance of attorney's fees against appellant to be included as part of the costs. Under our statute, a reasonable attorney's fee for the prosecution of the case may be allowed; and, inasmuch as this pertains to the remedy, it is taxed as part of the costs. Vaughan v. Humphreys, 153 Ark. 140, 239 S.W. 730, 22 A.L.R. 1201.

The amount of the judgment rendered in this case was $2,550, and the court allowed the sum of $500 as attorney's fee. The record of the case is before us; and, without in any manner disparaging the ability and services of the attorneys for appellee, it seems to us that the fee allowed is somewhat excessive and should be reduced to $400. Merchants' Fire Ins. Co. v. McAdams, 88 Ark. 550, 115 S.W. 175; Mutual Life his. Co. v. Owen, 111 Ark. 554, 164 S.W. 720; Maryland Casualty Co. v. Maloney, 119 Ark. 343, 178 S.W. 387, L.R.A. 1916A, 519; Aetna Life Ins. Co. v. Taylor, 128 Ark. 155, 193 S.W. 540, Ann. Cas. 1918B, 1122; Metropolitan Ins. Co. v. Chain hers, 136 Ark. 84, 206 S.W. 64; Indiana Lumberman's Mutual Life Ins. Co. v. Meyers Stave Mfg. Co., 158 Ark. 199, 250 S.W. 18; Camden Fire Assn. v. Meloy, 174 Ark. 84, 294 S.W. 378; and St. Paul Fire Marine Ins. Co. v. Green, 181 Ark. 1096, 29 S.W.2d 304.

Therefore the judgment recovered by appellee for the amount of the policy sued on will be affirmed, and the attorney's fee will be reduced to $400.