Continental Casualty Company v. Bruden

• Citation: 11 S.W.2d 493,178 Ark. 683
• Decision Date: 17 December 1928
• Docket Number: 57
• Parties: CONTINENTAL CASUALTY COMPANY v. BRUDEN
• Court: Supreme Court of Arkansas

11 S.W.2d 493

178 Ark. 683

CONTINENTAL CASUALTY COMPANY v. BRUDEN

No. 57

Supreme Court of Arkansas

December 17, 1928

Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann Judge; affirmed.

Judgment affirmed.

J Mitchell Cockrill, for appellant.

Wm J. Houghney, Sam T. Poe, Tom Poe and McDonald Poe, for appellee.

OPINION

SMITH, J.

This is a suit by appellee, as administrator of the estate of Columbus Joel, deceased, to recover under an accident policy issued by appellant insurance company for the accidental death of Joel, the insured, which was alleged to have been caused by heat prostration.

The policy provides that "the insurance given by this policy is against loss of life (suicide or self-destruction while sane or insane not included), limb, limbs, sight or time resulting from a personal bodily injury which is effected solely and independently of all other causes by the happening of an external, violent and purely accidental event * * *."

The testimony on the part of appellee was to the effect that, while Joel was engaged in the performance of his duties as a machinist helper in putting grease in a cellar of an engine, while in a pit under the engine, he became overheated, and died about ten minutes after coming out from under the engine. The testimony was conflicting on this question.

On this issue the court charged the jury as follows:

"You are instructed that, before plaintiff is entitled to recover in this case, he must show by a preponderance or greater weight of the evidence that death resulted solely from heat prostration as alleged, and independently of any other cause. If he has failed to show by a preponderance of the evidence that death resulted solely from such injury, and independently of any other cause, then he cannot recover, and your verdict will be for defendant.

As the jury returned a verdict in favor of the plaintiff, we must assume that the finding was made that the insured died from heat prostration, and, without setting out the conflicting testimony on this question of fact, we announce our conclusion to be that the testimony was amply sufficient to support this finding.

It is earnestly insisted, however, that, even though the insured came to his death as a result of heat prostration, or sunstroke, this was not a risk covered by the policy under the language quoted above, and the correctness of this contention is the real and the difficult question in the case.

The authorities are united in treating heat prostration and sunstroke as meaning the same thing, but they are in direct conflict as to whether death therefrom is an accidental death.

The case of Caldwell v. Travelers Ins. Co., 305 Mo. 619, 267 S.W. 907, 39 A. L. R. 56, decided by the Supreme Court of Missouri, November 25, 1924, reviews all the cases on the subject up to that time, and reference is made to it for a citation to these cases, and we will not again review them. The learned justice who wrote the opinion above referred to there said:

"There are two clearly defined lines of cases on this question. One holds that, where an unusual or unexpected result occurs by reason of the doing by insured of an intentional act, where no mischance, slip, or mishap occurs in doing the act itself, the ensuing injury or death is not caused through accidental means; that it must appear that the means used was accidental, and it is not enough that the result may be unusual, unexpected, or unforeseen. The other line of cases holds that, where injury or death is the unusual, unexpected, or unforeseen result of an intentional act, such injury or death is by accidental means, even though there is no proof of mishap, mischance, slip, or anything out of the ordinary in the act or event which caused such injury or death."

Among the numerous cases there reviewed is that of Standard Life & Acc. Ins. Co. v. Schmaltz, 66 Ark. 588, 53 S.W. 49, 74 Am. St. Rep. 1121, in which the facts were that a railroad machinist, who held an accident policy in the appellant insurance company, was engaged in removing the cylinder head of an engine. The deceased was a strong man, and had frequently removed cylinder heads without injury. On the occasion when his fatal injuries were received the cylinder head stuck, and the insured picked up a steel bar and removed it, and, as he did so, he dropped the bar and caught the cylinder head to prevent it from falling. Insured was immediately taken sick, and began vomiting blood, and continued to do so until his death. The attending physician testified that the insured had ruptured a blood vessel, and the court held that this evidence was sufficient to sustain the finding by the jury that the death of the insured was accidental, and that the injury was caused solely by external, violent and accidental means, against which the policy sued on had insured the deceased.

The case of AEtna Life Ins. Co. v. Little, 146 Ark. 70, 225 S.W. 298, was a suit on an accident policy very similar to the one here sued on. The insured in that case was killed by a man who mistook him for a burglar, and we held that this testimony warranted the jury in finding that the death of the insured was...