Interstate Business Men's Acc. Ass'n v. Adams

• Decision Date: 14 January 1929
• Docket Number: (No. 93.)
• Citation: 13 S.W.2d 591
• Parties: INTERSTATE BUSINESS MEN'S ACC. ASS'N v. ADAMS.
• Court: Arkansas Supreme Court

13 S.W.2d 591

INTERSTATE BUSINESS MEN'S ACC. ASS'N v. ADAMS.

(No. 93.)

Supreme Court of Arkansas.

January 14, 1929.

Rehearing Denied February 25, 1929.

Appeal from Circuit Court, Union County; W. A. Speer, Judge.

Action by Mrs. Annis Adams against the Interstate Business Men's Accident Association. Judgment for plaintiff, and defendant appeals. Modified and affirmed as modified.

This suit was brought by appellee, beneficiary in the policy, to recover the indemnity provided for accidental death of her husband, the insured.

It was alleged that the policy was duly issued and in force at the time of the alleged accidental death of her said husband, and that it insured the said W. E. Adams against loss of life in the sum of $2,000 "by reason of physical injury effected by accidental means independently of all other causes, upon the terms contained in Part 1 thereof and subject to the provisions and upon performance of the conditions in Parts 3, 4 & 5 thereof." It was further alleged that, while Adams was at the home of W. O. Giles, "he was accidentally killed by being shot with a rifle in the hands of said W. O. Giles"; that due notice of the death had been given and proof of loss had been furnished, and the defendant had failed to pay same. Prayer was made for judgment for the amount of the policy, penalties, and attorney's fees.

The answer admitted the execution of the policy upon the terms contained in Parts 1 and 2, "subject to the provisions and upon the performance of the conditions of Parts 3, 4 & 5 of said policy." Denied that the insured was killed accidentally by being shot with a rifle in the hands of Giles, and that plaintiff on account of his death became entitled to the sum of $2,000 under the terms of the policy; and alleged that because of Adams' conduct, Giles shot and killed him intentionally.

Paragraph 3 of Part IV of the policy provides: "The insurance provided for loss by accidental means shall be reduced and the liability of the Association shall not exceed * * * (2) $100. If the loss be sustained as the result of the discharge of a firearm unless the claimant shall establish the accidental cause of the discharge by the testimony of a person other than the insured or the claimant, who saw the cause in operation at the time of the discharge. * * *"

On motion, over appellant's objection, the court struck out of its answer paragraph 2, pleading the part of the policy "(2) of paragraph 3 of Part IV of the said policy," holding it void as against public policy, and as contrary to the laws of the state, section 6156 of C. & M. Digest. The order further recites that appellant had attempted to plead said clause as one of its defenses and was not entitled under the law so to do, and ordered said paragraph struck out and said defense not allowed.

A motion for postponement of the trial was filed on the grounds of surprise, after W. O. Giles, whom it was alleged had shot and killed the insured, had refused to testify about the killing on the witness stand, claiming his exemption on the ground that his answers might tend to incriminate him; it being alleged in the motion that witness had twice told appellant's attorneys all about the killing and that he had shot the deceased in necessary self-defense and would so testify. The motion also recited the names of the other witnesses as given to appellant's attorneys by Giles, and that none of them were present when the shooting occurred. It appeared also that all of these witnesses, except one, were present at the trial.

Appellee testified that she was the widow of the insured and introduced the policy in evidence; that her husband was killed on July 21, 1927; that because of her condition the doctor would not permit her to see him; her baby was born 6 weeks after the death; the body was brought to her mother's house and taken from there to the church.

It further appeared from the testimony that the insured was lying dead on the porch of the home of W. O. Giles when the witnesses appeared, and that he had been shot with a rifle in the belly about two inches left of the navel.

The sheriff stated he was called to the home of Giles; that several were present when he viewed the body, naming some of them, and the body was lying just at the right of the steps as you go into the house on the edge of the porch 8 to 10 feet from the screen door. He could not see whether it was lying where...