Bassett v. Mutual Benefit Health & Accident Association

• Decision Date: 21 January 1929
• Docket Number: 103
• Citation: 12 S.W.2d 893,178 Ark. 906
• Parties: BASSETT v. MUTUAL BENEFIT HEALTH & ACCIDENT ASSOCIATION
• Court: Arkansas Supreme Court

12 S.W.2d 893

178 Ark. 906

BASSETT v. MUTUAL BENEFIT HEALTH & ACCIDENT ASSOCIATION

No. 103

Supreme Court of Arkansas

January 21, 1929

Appeal from Sebastian Chancery Court, Greenwood District; J. V Bourland, Chancellor; reversed.

Decree reversed.

Robert A. Rowe and John E. Tatum, for appellant.

Harrell Harper and Evans & Evans, for appellee.

OPINION

SMITH J.

Appellant, as administrator of the estate of R. S. Boyd brought suit to recover the amount of an accident insurance policy issued by appellee insurance company on the life of his intestate. This suit was begun November 27, 1926, by filing a complaint in the circuit court, upon which summons was duly issued and served. The policy sued on was later made an exhibit to the complaint, and it appeared therefrom that the company had insured said Boyd from loss of life through accidental means, which, independently and exclusively of all other causes, should cause the death of the said Boyd, in the sum of $ 1,500, but that death by suicide, whether the insured was sane or insane, was a hazard not covered by the policy.

On January 3, 1927, the company filed a demurrer to this complaint, which appears never to have been passed upon. On the same day the company filed a complaint in the chancery court, upon which a summons was duly issued and served two days later, in which the issuance of the policy and the death of the insured was admitted. The complaint alleged, however, that the policy had lapsed, but that the insured had later procured its reinstatement for the fraudulent purpose of augmenting his estate by committing suicide, and that the insured did, on November 23, 1925, commit suicide. There was a prayer that the policy be canceled on account of this alleged fraud.

The suit at law was transferred to equity, over the objection of the plaintiff administrator, who, on April 23, 1927, filed in the chancery court a motion to transfer the cause back to the law court, because the chancery court had no jurisdiction and because there was a full, complete and adequate remedy at law. This motion was overruled. The plaintiff administrator then filed a demurrer, which does not appear to have been acted upon. He then filed an answer, and thereafter began an original proceeding in this court to prohibit the chancellor from proceeding with the trial of said cause.

In the opinion rendered upon a consideration of this petition, found reported as Bassett v. Bourland, 175 Ark. 271, 299 S.W. 13, denying the prayer for a writ of prohibition, we said that the circuit judge had jurisdiction to pass upon the motion to transfer to equity, and that, if the cause had been erroneously transferred to equity, prohibition was not the remedy to correct the error, but the error could be corrected only by appeal. We said:

"Petitioner pursued the proper course in objecting and excepting to the order of the circuit court transferring the case to chancery, and by appearing in the chancery court and moving to transfer the case back to the circuit court."

We said that, upon the motion to re-transfer being overruled, petitioner had the right, if he did not elect to stand upon his motion and refuse to proceed with the trial, in which event his complaint would, no doubt, be dismissed, to go to trial in the chancery court, and from an adverse decree against him he could appeal to this court, "where this court would review the case for all errors appearing in the record de novo," and that "we therefore refrain from a discussion of whether the transfer from the circuit to the chancery court was right, and whether the decision of the chancery court on the motion to re-transfer to the circuit court was right, for, if both of these decisions were wrong, they cannot be corrected by prohibition, and can only be corrected by appeal."

After the rendition of this opinion the chancellor proceeded with the trial of the cause, and found the fact to be that the insured had committed suicide, and, upon this finding, decreed the cancellation of the policy, and this appeal is from that decree.

We think the chancellor was in error in assuming jurisdiction of the cause, and that he should have granted the prayer to re-transfer the cause to the circuit court. If it be said that chancery had jurisdiction upon any allegations of fraud or otherwise to cancel the policy after the death of the insured (which we do not decide), it must also be said that the jurisdiction to grant relief by cancellation was not exclusive, as the circuit court, upon proof of fraud invalidating the policy, could, by refusing to permit a recovery on the policy, have granted, in effect, the same relief. The circuit court certainly had jurisdiction to determine whether the policy was void for the...