ON MOTION FOR REHEARING
Decided May 22, 1935
By THE COURTThe above entitled cause is now being determined on plaintiff in error’s motion for a rehearing. Accompanying the application and appended thereto is counsel’s memoranda of points raised and authorities cited. We havé examined the authorities, but find nothing therein leading us to modify our original conclusions. Complaint • was made that we failed to discuss the case of Liberty Life Insurance Company v Olive, 180 Ark. 339, 21 SW (3d) 405. We think -the reported case is to be distinguished from the instant case in that the offer to reinstate was made after the case for damages was on trial ’and the court in the opinion mentioned tho fact that the offer did not include payment of costs and attorney’s fees. In the instant case the controverted question was terminated- before the bringing of the action for damages. And there is no element of damages in the case at bar that was not fully met in the offer of reinstatement. It is true that there is no mention of attorney’s fees, but that is not specified as an element of damages in the instant ■ case.
The case of Lane v New York Life Insurance Company. 145 SE 196, is also cited in the memoranda for rehearing. This case was cited in the original briefs as one of the leading cases upon which plaintiff in error was relying. We examined it very carefully then and have re-read in connection with this application for rehearing. It seems to us that this case supports a right of equitable action for reinstatement although counsel for Mr. Harrison seems to have the view that the equitable action would not lie. This is upon the theory that Mr. Harrison, being insurable, would have an action at law.
It is our theory that a contract of insurance is property and any unwarranted taking away of the rights under the insurance policy would be a deprivation of property rights without due process of law. This is in line with our original opinion that policyholders have a right to have the question judicially determined as to whether or not their policy of insurance is still active and alive.
A policy of insurance payable in future to the estate or beneficiaries is not terminated merely by the insurance company so stating. No unauthorized or unwarranted act can have such an effect. In order to be terminated there must be present the essential facts provided for in the contract of insurance.
In the instant case there was no controversial question as to the status of this policy at the time plaintiff brought his action for damages. Mere delay in accepting his proper premium payments could not injure or damage him.
The application for rehearing will be overruled.
BARNES, PJ, and HORNBECK, J, concur. BODEY, J, not participating;