Aetna Life Ins. Co. v. Lemay
| Decision Date | 05 February 1951 |
| Docket Number | No. 4-9366,4-9366 |
| Citation | 236 S.W.2d 85,218 Ark. 328 |
| Parties | AETNA LIFE INS. CO. v. LEMAY. |
| Court | Arkansas Supreme Court |
Owens, Ehrman & McHaney and John M. Lofton, Jr., all of Little Rock, for appellant.
Pat Robinson, Lewisville, for appellee.
This appeal is the result of a jury verdict for the plaintiff in a suit involving that part of an insurance policy providing for double indemnity in event of accidental death of the insured, John Clint Lemay. By its verdict the jury found that death was accidental within the meaning of the policy.
The sole issue here is whether there is substantial evidence to support the verdict. If there is such evidence the case must be affirmed; otherwise, reversed. Mutual Life Insurance Co. of New York v. Springer, 193 Ark. 990, 104 S.W.2d 195.
The evidence is viewed in the light most favorable to the appellee and we indulge all reasonable inferences in favor of the judgment. Mutual Benefit Health & Accident Ass'n v. Basham, 191 Ark. 679, 57 S.W.2d 583.
The provision of the policy in issue provides: 'If the death of the insured occurs before default in payment of premium and before the first anniversary of the date of this policy which follows the age of 70 years, and such death results directly and independently of all other causes from bodily injuries effected solely through external, violent and accidental means within 90 days from the occurrence of such accident, and if such accident is evidenced by a visible contusion or wound on the exterior of the body (except in case of drowning and internal injuries revealed by an autopsy), and if such death does not result from suicide, while sane or insane, nor from military or naval service in time of war, nor from an aeronautic flight or submarine descent, nor directly or indirectly from disease in any form, then the Company will pay a sum equal to the sum described in this policy as the sum insured in addition thereto.'
On the 30th day of May, 1948, the insured, John Clint Lemay, died as the result of a gunshot wound inflicted by Carroll Hamn, the Constable at Stamps, Arkansas. The injury being violent and external the presumption is that it was accidental and the burden is on the Insurance Company to show otherwise. Metropolitan Cas. Ins. Co. v. Chambers, 136 Ark. 84, 85, 206 S.W. 64. However, such presumption is not conclusive and may be rebutted. Gilman v. New York Life Insurance Co., 190 Ark. 379, 79 S.W.2d 78, 97 A.L.R. 755; Missouri Pacific Railroad Co. v. Forsee, 181 Ark. 471, 26 S.W.2d 108; Missouri Pacific R. Co. v. Hull, 182 Ark. 873, 33 S.W.2d 406.
The facts are substantially as follows:
Hamn is a man 69 years of age, is rather frail, weighing 135 pounds, and at the time of the killing had just three days previously been released from the Veterans' Administration Hospital where he had been confined for 7 weeks. He has a service connected total disability from the First World War. Lemay had some real or imaginary grievance against Hamn by reason of Lemay having been charged with a misdemeanor. On the morning of the day of the killing Hamn and Lemay had both gone to the grocery store. Lemay was drinking and told Hamn that he, Hamn, had 'butchered' him up. Hamn then saw Lemay was drinking and mad. Lemay 'invited' him out, but Hamn told Lemay he would get out. Hamn left the store because he did not want to have any trouble with Lemay.
Hamn next saw Lemay that afternoon at Baker's Drug Store. He went in to get a 'coke' and not long thereafter Lemay entered and told Hamn that he had come in there to beat him up; he grabbed Hamn by the collar and tie and attempted to strike him, but missed. Mr. Baker spoke up and said he didn't want any trouble in there and helped separate the two. The above facts as shown by the evidence stand uncontradicted.
Hamn then testified that after they were separated Lemay stepped off toward the showcase and Hamn stayed at the soda fountain, and shortly thereafter Lemay 'came back at him like a hyena', grabbed and hit him. Hamn told Lemay to quit beating him and consider himself under arrest. Lemay replied: 'I am not considering no arrest, you cannot arrest me.'
Witness was physically unable to defend himself against Lemay. His hands being sore and swollen, he could...
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...that either the insured provoked the encounter and was killed by his wife in self defense, see Aetna Life Insurance Co. v. Lemay, 218 Ark. 328, 236 S.W.2d 85, 87 (1951) (Lemay ); Gilman v. New York Life Insurance Co., 190 Ark. 379, 79 S.W.2d 78, 79-80 (1935) (Gilman ), or the insured provok......
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