dissenting. Appellee’s case undoubtedly involves a tragic situation, and there is no member on this court who does not have sympathy for appellee in the loss of his feet. That loss and disability, of course, resulted from his circulatory problems, not an accident. On this point, we have no dispute.
In the majority’s efforts to allow benefits to appellee under these tragic circumstances, it has permitted appellee to introduce parol testimony which changed what clearly was an accidental death, dismemberment and medical expense policy into an accident or sickness policy. The subject policy provisions covering dismemberments mention only losses resulting from an accidental cause. No provisions exist whatsoever that describe benefits for such losses caused by sickness. Nonetheless, the trial court and this court’s majority have decided that a trainee — not even an agent — for appellant’s predecessor company which issued the policy could testify to conversations that purportedly took place when the policy was issued some fourteen years ago. In essential part, the then-trainee, Carl Miller, was allowed to testify that the president of the insurance company instructed the trainees and others that “the kind of policy involved in this case would cover the loss of limbs, no matter what happened, sickness or accident.”
Miller’s recollection of what was said fourteen years ago when the subject policy was issued should not have been allowed, if for no other reason, because the policy clearly provided it constituted the entire contract which could not be changed or its provisions waived by an agent — much less a trainee. See Apco Oil Company v. Stephens, 270 Ark. 715, 606 S.W.2d 134 (Ark. App. 1980) (the court held any oral or other prior or contemporaneous agreement between the parties become merged into the written instrument and parol evidence is not admissible to vary the terms of the writing in that manner).
Importantly, the appellee in no way asserts the appellant or its predecessor company was guilty of fraud, so to prevail in his claim for benefits, his entitlement must rise or fall upon the contract or policy terms. Because the policy, as I have described, covers only loss of members caused by an accident and because the policy constitutes the parties’ entire contract, appellee simply cannot prevail since his amputations resulted from sickness.
The majority suggests that Miller’s testimony was permissible to explain an ambiguity which resulted from information supplied and written in Item 13 of appellee’s application form under the caption “Optional Benefits.” It reasons the amount of coverage, $10,000.00, for accidental death and dismemberment was set forth in Item 13c, so the immediately following Item d, captioned “Other,” must have been intended by the parties to include a different kind of coverage than that just mentioned in Item 13c. Quite simply, Item 13d merely explains Item 13c by specifying the appellee would receive $ 10,000.00 for the accidental loss of both feet, hands or eyes but would be limited to $5,000.00 for one foot, hand or eye. The majority argues that to construe Items c and d together would be redundant because the policy at page three sets forth the amounts of coverage for certain dismemberment losses resulting from an accidental cause; thus, it concludes Item d had to have been completed with some other kind of coverage in mind, viz., loss of feet, hands or eyes as a result of sickness. Such a supposition is a quantum leap with nothing in the printed policy or application to substantiate it.
Again, there are no provisions in the insurance policy which allude to dismemberments which result from an illness, and short of allegations of fraud and deceit, I fail to see how any legitimate argument can be made that the policy issued can provide any benefits except for a dismemberment that results from an accidental cause. While the printed policy, itself, set forth the amount of coverage for specified dismemberments arising from an accident, one can hardly say it was redundant or needless to specify this same coverage in the application form. After all, the application had been completed before and made a part of the policy after it was issued.
Even if I were constrained to find an ambiguity in the policy and application — which I am not — I would still have difficulty in legitimating benefits awarded for medical dismemberments when the policy — throughout its provisions and terms — refers only to coverage resulting from accidental causes.
I am compelled to disagree with the majority and would reverse and dismiss this cause.
Corbin, J., joins in this dissent.