53 S.W. 49 (Ark. 1899), Standard Life & Accident Insurance Company v. Schmaltz

Citation:53 S.W. 49, 66 Ark. 588
Opinion Judge:BATTLE, J.
Attorney:H. C. Hynson and Scott & Jones, for appellant. Williams & Arnold, for appellee.
Case Date:October 07, 1899
Court:Supreme Court of Arkansas

Page 49

53 S.W. 49 (Ark. 1899)

66 Ark. 588




Supreme Court of Arkansas

October 7, 1899

Appeal from Miller Circuit Court JOEL D. CONWAY, Judge.

Judgment affirmed.

H. C. Hynson and Scott & Jones, for appellant.

The death of the insured, though perhaps accidental, was not from "accidental cause." The means or cause of his death was not accidental, though the result may have been unforeseen or accidental. 76 N.W. 683; 127 U.S. 661; 75 Wis. 116; 47 N.Y. 52; 144 Mass. 572; 44 P. 996; 1 Am. & Eng. Enc. Law, 331; 112 N.Y. 422; S. C. 8 Am. St. Rep. 763; 80 Mo. 251; 28 S.W. 877; 3 N.E. 818; 1 Am. & Eng. Enc. Law, 291; 23 F. 712; 131 U.S. 100; 3 Joyce, Ins. § 2863; 30 S.W. 879; 70 N.W. 460; 154 Mass. 77; 44 P. 996; 60 Ark. 381; 22 S.E. 976. This case is covered by the stipulation, in the policy, against liability for injuries from "over-exertion, wrestling, lifting," etc. 22 S.E. 796. There was no waiver by appellant of the proof of death within sixty days. 41 S.W. 464; 64 Neb. 590; 11 Mo. 278; 43 N.H. 621. The statements made by deceased to his physician the day after the injury were not part of the res gestae. 51 Ark. 509; 73 F. 774.

Williams & Arnold, for appellee.

The jury, upon all the evidence, were entitled to say whether the cause of decedent's death was accidental. An in-jury is from "accidental cause" if it is produced' by means which were neither designed nor calculated to cause it. 131 U.S. 60; 29 C. C. A. 223; S. C. 85 F. 401; 12 U. S. App. 381, 356, 387, 389; 5 C. C. A. 347, 350, 351, 353; 55 F. 949, 952, 953, 955; 1 Fost. & F. (Eng. N. P.), 505; 69 Pa. 43 (1893); 1 Q. B. 750; 24 C. C. A. 309; S. C. 78 F. 754. The jury may infer an accident from other facts in proof. 24 C. C. A. 654; 79 F. 423. The "lifting" which caused decedent's death was an ordinary incident of his employment, and was contemplated by the parties when he was insured as a machinist. 57 N.W. 186; 63 N.W. 593; 1 Am. & Eng. Enc. Law (2 Ed.), 310, 311, 319; 95 U.S. 673-9; 65 Mo. 328; 65 Ark. 61; 52 Ark. 11. The testimony of decedent's physician as to his statements was admissible. The statements were res gestae. 40 S.W. 909; 2 Cinn. S.Ct. 98; S. C. 4 Big. Life & Ace. Ins. Rep. 366; 46 Barb. 369; 11 Allen, 324. Not only was the jury justified in finding that there was a waiver of further proof of death, but the information furnished substantially complied with the requirements of the policy. 52 N.W. 582; 52 Ark. 11.


Page 50

[66 Ark. 590] BATTLE, J.

Catherine Schmaltz sued the Standard Life & Accident Insurance Company for the sum of two thousand dollars, upon a policy of insurance against accidents, which was executed by the defendant to her husband, E. Schmaltz, in his lifetime. She alleged in her complaint that the defendant insured her husband, for her benefit, against the loss of life resulting from bodily injuries caused solely by external, violent and accidental means; and that, on the third day of April, 1897, her husband, while engaged in the performance of the duties incident and pertaining to his employment and occupation as a machinist, in an effort to remove the cylinder head of an engine he was repairing and to prevent the same from falling, violently, unexpectedly and accidentally, and by external means wrenched his body in such a manner as to rupture one of the blood vessels of his stomach, and thereby caused his death; and that, immediately after his death, "she gave notice thereof, and within the time prescribed by said policy made out and forwarded to said insurance company proofs of his death, and that she had in all other respects complied with the provisions and requirements of said policy."

The defense to the action was as follows: The deceased did not suffer death from injuries by external, violent, and accidental means, the policy having specially exempted the defendant from liability for all injuries which resulted from lifting or over-exertion, and he came to his death by those means; and the proof of death had not been furnished as required by the policy.

The issues of fact were tried by a jury, and they returned a verdict in favor of the plaintiff for $ 2,000, the amount of the policy, and the court rendered a judgment in her favor for that amount against the defendant; and it appealed.

First. The appellant contends that the verdict was not sustained by sufficient evidence. The undisputed facts are: (1) The appellant insured E. Schmaltz for the benefit of appellee, his wife, in the sum of $ 2,000 against loss of life resulting [66 Ark. 591] from bodily injuries caused solely by external, violent and accidental means, and agreed to pay that amount to her in the event of death caused by such means. And (2) the insured died within the term of his insurance from a sudden and unexpected rupture of one or more blood vessels in the stomach. But appellant insists that the death was not caused by external, violent and accidental means. Upon this point the trial court instructed the jury as follows:

"1. If you find from the evidence that E. Schmaltz came to his death by violent, external and accidental means in removing the cylinder head of an engine, and if you further find that the removal or lifting of said cylinder was in the line of his occupation and duty as a machinist, and that he incurred no more risk or danger in removing or lifting said cylinder head than was customary among reasonably prudent machinists in the performance of like duties, then you are instructed that the removal of said cylinder head was not within the exceptions of the policy.

"2. A person may do certain acts, the result of which may produce unforeseen consequences, and may produce what is commonly called accidental death, although the means are exactly what the man intended to use and did use, and was prepared to use. In such case the means would not be accidental, although the result might be accidental. In this case you are told that the plaintiff must prove by a preponderance of the evidence that the injury to the deceased was caused by external, violent and accidental means, and it is not sufficient that she prove that the result of the means employed by deceased was unforeseen, unexpected and accidental.

"3. If the jury find from the evidence that, in the removing of the cylinder head from the engine, and carrying it off and putting it down, deceased acted in the manner he intended to act, and used the means he intended to use in the manner he intended to use them, and in so doing a blood vessel was ruptured, then you are told that the injury was not the result of accidental means, and plaintiff cannot recover.

"4. The jury are...

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