Industrial Mut. Indemnity Co. v. Armstrong

• Decision Date: 03 January 1910
• Citation: 124 S.W. 236
• Parties: INDUSTRIAL MUT. INDEMNITY CO. v. ARMSTRONG.
• Court: Arkansas Supreme Court

124 S.W. 236

INDUSTRIAL MUT. INDEMNITY CO. v. ARMSTRONG.

Supreme Court of Arkansas.

January 3, 1910.

Appeal from Circuit Court, Garland County; W. H. Evans, Judge.

Action by Bettie Armstrong against the Industrial Mutual Indemnity Company. From a judgment for plaintiff, defendant appeals. Reversed, and judgment rendered.

Appellee sued appellant in justice court on certain accident insurance policies. In her complaint she asked for judgment for $70 and interest, also $10 per week during continuance of disability, and for 12 per cent. penalty and attorney's fees. She obtained judgment in the justice court. And on appeal by appellant to the circuit court, appellee again obtained judgment in the sum of $30, and also 12 per cent. penalties and $15 for an attorney's fee. Appellant moved to modify this judgment by eliminating the amount recovered as penalty and attorney's fee. The court overruled the motion and judgment was entered for the $30 and for the penalty and attorney's fee. Appellant appeals from that part of the judgment for the penalty and attorney's fee. The amount demanded of the company was $70 and $10 per week during the continuance of her disability. The jury returned a verdict for $30.

Jas. E. Hogue and Calom T. Cotham, for appellant. R. G. Davies, for appellee.

WOOD, J. (after stating the facts as above).

The court erred in rendering judgment for the penalty and attorney's fee. The error appeared in the judgment. A motion for new trial was therefore unnecessary to bring it to the attention of this court. Gates v. School District, 57 Ark. 370, 21 S. W. 1060, 38 Am. St. Rep. 249; Norman v. Fife, 61 Ark. 33, 31 S. W. 740.

The question here involved is ruled by the decision of this court in the recent case of Pacific Mutual Life Ins. Co. v. Carter, 123 S. W. 384. The judgment for penalty and attorney's fee is reversed, judgment is entered here for appellee, in the sum of $30, and appellee will pay the costs of this appeal.