Harrison v. Interstate Business Men's Accident Association of Des Moines, Iowa

• Decision Date: 18 March 1918
• Docket Number: 231
• Citation: 202 S.W. 34,133 Ark. 163
• Parties: HARRISON v. INTERSTATE BUSINESS MEN'S ACCIDENT ASSOCIATION OF DES MOINES, IOWA
• Court: Arkansas Supreme Court

202 S.W. 34

133 Ark. 163

HARRISON v. INTERSTATE BUSINESS MEN'S ACCIDENT ASSOCIATION OF DES MOINES, IOWA

No. 231

Supreme Court of Arkansas

March 18, 1918

Appeal from Garland Circuit Court; Scott Wood, Judge; reversed.

Judgment reversed and cause remanded.

O. H Sumpter, for appellant.

The complaint and amendment stated a good cause of action and it was error to sustain the demurrer. If there were any defects in the complaint they were waived. The injury falls within the definition of "accidental," external and violent. Kirby's Dig., §§ 6093-4; 14 R. C. L § 418, pp. 1238-9; 8 Ark. 74; 44 Id. 205; 43 Id. 230; 104 Id. 79; 92 Id. 297; 14 R. C. L. 1433; 1 C. J. 489, § 240; 89 Cal. 170; 23 Am. St. 455; 97 Ark. 508; 77 Id. 1; 60 Id 70; 1 C. J., § 337, p. 508, and many others.

Cobb & Cobb, for appellee.

The complaint stated no cause of action and the demurrer was properly sustained. The authorities cited by appellant are not in point. The injury was not accidental, and plaintiff purposely concealed the facts. The act was deliberate and intentional and not accidental within the terms of the contract.

STATEMENT OF FACTS.

B. F Harrison sued the Interstate Business Men's Accident Association of Des Moines, Iowa, to recover on an accident insurance policy issued to him by said company.

The complaint alleges that by the terms of the policy he was insured on account of bodily injuries sustained by him while he was engaged in the occupational duties specified in his application, or while engaged in ordinary duties about his residence, or in recreation, effected directly and independently of any other contributing, concurring or intervening cause, by external, violent or accidental means. His complaint further alleges the following:

"On the 15th day of December, 1916, after the execution of said policy and while it was in full force and effect, the plaintiff, while asleep in bed at his home, number 108 Spencer Street, Hot Springs, Arkansas, by some means unknown to plaintiff, but which he says was external, violent and accidental, he suffered the complete loss of his testicles and bag, whereby he was wholly and totally disabled for the period of eight (8) weeks from prosecuting and engaging in all of his occupational duties and for five (5) weeks from engaging in some of his occupational duties."

It also alleges that the insured gave the company due notice of his injury in accordance with the terms of the policy and demanded payment under it, which was refused by the company. The defendant filed a motion to require the plaintiff to make his complaint more definite and certain. The plaintiff amended his complaint by inserting the following:

"That the means by which he suffered the complete loss of his testicles and bag were external, violent and accidental, but to him unknown; that he believes they were severed with a sharp instrument."

The defendant filed a demurrer to the complaint which was sustained by the court and the plaintiff refusing to plead further, his complaint was dismissed. From the judgment rendered the plaintiff has appealed.

OPINION

HART, J., (after stating the facts).

In sustaining the demurrer the court seems to have proceeded upon the theory that from the allegations of the complaint that the person inflicting the injury must have intended to do it and that it was not therefore "accidental" within the legal meaning of that word as used in the policy. This is not the law.

In Maloney v. The Maryland Casualty Co., 113 Ark. 174, 167 S.W. 845, the court held that if an injury occurs without the agency of the insured, it will be held to be "accidental," even though it may be brought about designedly by another person. Other authorities holding that death or injury by "accident...