Business Men's Accident Association of America v. Cowden

• Decision Date: 03 December 1917
• Docket Number: 16
• Citation: 199 S.W. 108,131 Ark. 419
• Parties: BUSINESS MEN'S ACCIDENT ASSOCIATION OF AMERICA v. COWDEN
• Court: Arkansas Supreme Court

199 S.W. 108

131 Ark. 419

BUSINESS MEN'S ACCIDENT ASSOCIATION OF AMERICA v. COWDEN

No. 16

Supreme Court of Arkansas

December 3, 1917

Appeal from Marion Circuit Court; John I. Worthington; reversed as to the attorney fee; affirmed on the verdict.

Judgment reversed in part, affirmed in part.

Geo. H Perry and Gilmore & Brown (of Missouri) for appellant.

1. No proof of loss, showing liability was furnished. 190 Mass 171, 448; 202 Id. 290; 95 U.S. 232; 89 Id 32; 204 F. 653.

2. The unexplained statements of the coroner and friends and neighbors of deceased, in the absence of explanation by plaintiff make a prima facie case for defendant, and imposed on plaintiff the burden of proving that deceased was not murdered, but that his death was the result of accident. 89 U.S. 32; 150 N.C. 1; 190 Mo.App. 57; 176 S.W. 253. No accidental death was proven. 267 Ill. 267; 80 F. 368; 65 So. 852.

3. The attorney's fee is a penalty by statute and not recoverable. 49 Ark. 455; 86 Id. 115; 224 U.S. 354.

4. The depositions offered should have been admitted in evidence, plaintiff had the opportunity to cross-examine the witnesses but did not do so. 15 Ark. 345; 85 Id. 263; Ib. 390.

5. The provisions of our statute have no extraterritorial effect, and no penalties should be allowed, nor attorney's fees taxed. 68 S.W. 889; 197 U.S. 262; 193 Id. 551; 184 Id. 695; 106 F. 815; 240 Ill. 45; 10 Wash. 202; 84 Neb. 866; 98 Tex. 230; 123 U.S. 661; 23 L. R. A. 264; 147 Cal. 763; 30 Cyc. 1347.

6. It was certainly error to direct a verdict, a clear case having been made for a jury.

Allyn Smith and Williams & Seawel, for appellee.

1. Proofs of death were made and no objections offered. They may be waived even. 95 U.S. 232; 112 Id. 896; 9 How. 390; 131 U.S. 694 (L. Ed. 25). The only condition precedent was that plaintiff furnish proof on blanks furnished by the company. This was done.

2. There was no error in the ruling of the court on the offer of appellant to introduce proofs of loss. Where an incomplete proof of loss is furnished and accepted without objections, or where all liability is denied, there is a waiver of proof of loss. 53 Ark. 494; 77 Id. 27; 79 Id. 475; 143 Pa.St. 570; 87 Ark. 174; 74 S.W. 203; 126 Ark. 493; 106 Id. 91.

3. There was no error in refusing to allow the depositions for plaintiff to be read. They were taken on notice and not by agreement. 15 Ark. 345; 92 Id. 276; 85 Id. 390; 195 S.W. 13.

4. Attorney's fees and penalty were properly allowable under the statute. 102 Ark. 43; 84 Id. 187; 86 Id. 115; 207 U.S. 73; 85 Ga. 751; 12 S.E. 18; 119 Ark. 102.

5. A verdict was properly directed. Plaintiff made a prima facie case and defendant introduced no evidence. 80 Ark. 190; 128 Ark. 155; 9 Ann. Cas. 919 and note; 57 Ark. 461; 79 S.W. 1163; 231 Ill. 380, etc.

OPINION

McCULLOCH, C. J.

William L. Cowden, a resident of the State of Kansas, secured a policy of accident insurance upon his own life, payable to his wife, Florence L. Cowden, from the defendant, Business Men's Accident Association of America, an insurance corporation domiciled at Kansas City, Missouri. Cowden met his death on or about September 27, 1913, while the insurance policy was in force. His body was found in the Missouri River at Kansas City on October 1, 1913, and due notice of death was given by the beneficiary in accordance with the terms of the policy. Proof of loss was made and furnished on blanks provided by the company, and payment of the policy was refused on the ground that the manner of death did not come within the terms of the policy, so as to create liability on the part of the insurer.

The present action to recover on the policy was instituted by the beneficiary, Mrs. Cowden, in the circuit court of Marion County, Arkansas, nearly three years after the death of her husband. The trial of the cause before a jury resulted in a verdict in favor of the plaintiff for the amount of the policy and the court rendered judgment for the amount, and also for attorney's fees, but refused to enter judgment in favor of the plaintiff for the twelve per centum damages prescribed by statute. The defendant appealed from the judgment and the plaintiff cross-appealed from that part of the judgment refusing to allow damages. The verdict of the jury was rendered in plaintiff's favor pursuant to a peremptory direction by the court.

The first question presented here for our consideration is whether or not the court erred in directing a verdict. The policy of insurance constituted, according to its terms, an undertaking on the part of the defendant company to pay the amount named therein to the said William L. Cowden in the event of his accidental injury, or, "in the event of accidental death to pay to Florence L. Cowden (his wife) the benefits * * * provided such injury or death be caused during his membership, solely and exclusively by external, violent and accidental means." Reference is made in the policy to the by-laws of the defendant association and the same were declared to be a part of the policy. The by-laws contained a provision to the effect that the company should not be liable for "intentional injuries inflicted by the insured while sane or insane, or by any other person while sane or insane, except assaults committed for the sole purpose of burglary or robbery," which said provision was, by express stipulation of counsel entered on the record at the time of trial, conceded to exclude liability on the part of the company for death of the insured caused by self-inflicted injuries, or by injuries inflicted by any other person "except assaults committed for the sole purpose of burglary or robbery." At the beginning of the trial the following agreement was entered into concerning the facts:

"It is admitted that William L. Cowden, the insured, is dead, his body having been found in the Missouri River at Kansas City about October 1, 1913, with a wound on the head and face on the right side that penetrated the brain and caused his death. It was a sharp and incised wound that did not fracture the bone or tear the flesh. It was just cut."

Thereupon the court announced a ruling as follows: "Upon that admission the burden of proof is upon the plaintiff to show that proofs of death were furnished to the company, and upon the defendant to show that the insured came to his death as a result of murder, and not an accident."

The plaintiff then introduced certain letters received from the defendant's manager of the claim department acknowledging receipt of the proof of loss within due time, and subsequently denying liability under the policy. The plaintiff then rested her case, and no other proof was introduced in the case except the further admission above referred to concerning the exclusion of liability for certain causes of death. The ruling was not accurate in declaring the extent to which the burden rested on the defendant, but the court was correct in holding that the admission of facts set forth in the record cast upon the defendant the burden of proof to show that the death occurred from one of the causes which exempted the company from liability and constituted a defense to the action. In other words, the admission of the fact that the death occurred from violent, external means made out a prima facie case in favor of the plaintiff, and put the burden of proof on the defendant to show that the death resulted from a self-inflicted wound, or from a wound inflicted by another person for purposes other than for burglary or robbery. The point is expressly ruled by the decision of this court in the recent case of Aetna Life Insurance Co. v. Taylor, 128 Ark. 155, 193 S.W. 540, where we said that "accident policies generally contain a clause, the purpose of which is to relieve the insurer from responsibility in case of death of the insured caused by intentional injuries inflicted by the insured or some third person, or caused by disease, or caused by voluntary exposure to unnecessary danger, etc., and that, where the insurer sets up the breach of one of these conditions as a defense, the burden is, of course, upon it to prove by a preponderance of the evidence that death was caused by a breach of one of these conditions." The present case falls squarely within this rule. The policy in suit provided for payment in the event of death of the insured "solely and exclusively by external, violent and accidental means" but a further condition was prescribed in the by-laws which exempted the company from liability in certain events. So where the proof adduced either by the testimony of witnesses or by agreement of parties made out a prima facie case in favor of the plaintiff by establishing the death from "external, violent and accidental means" the burden shifted to the defendant to prove that the death resulted from some of the causes falling within the exemption prescribed in the by-laws.

The only remaining question, then concerning the correctness of the court's ruling in giving a peremptory instruction is whether or not, upon the admission of this fact, there was sufficient testimony to warrant a submission to the jury of the issue cause of death from some of the means which would have exempted the defendant from liability. There is a presumption against suicide. Grand Lodge v Banister, 80 Ark. 190, 96 S.W. 742; Aetna Life Insurance Co. v. Taylor, supra. In the face of that presumption and of the conceded facts set forth in the agreement concerning the condition of the body when found, it can scarcely be urged with any degree of plausibility that a finding of suicide would have been justified. There is no circumstance tending to establish suicide and nothing from which any reasonable inference to that effect could have been drawn. So there was...