Life & Cas. Ins. Co. of Tennessee v. Gilkey
| Decision Date | 11 February 1974 |
| Docket Number | No. 73--202,73--202 |
| Citation | 505 S.W.2d 200,255 Ark. 1060 |
| Parties | LIFE AND CASUALTY INSURANCE COMPANY OF TENNESSEE, Appellant, v. Anna GILKEY, Appellee. |
| Court | Arkansas Supreme Court |
Wallace M. Moody, El Dorado, for appellant.
Ronald L. Griggs of Camp & Thornton, P.A., El Dorado, for appellee.
Appellant issued its policy insuring the deceased, William Gilkey, against loss of life, limb, or sight resulting from violent external and accidental means. His mother, the appellee, was made the beneficiary of the policy. The insured was fatally injured by a tractor he was driving on a public highway when he was thrown or fell from it. He was enroute to his home after using it for farming purposes. The policy provides a $1,000 coverage for accidental death in four instances. The only relevant section, and the one in controversy, provides coverage when death occurs:
As a result of a collision of or other accident to any automobile, taxicab, bus, truck, wagon or buggy inside of which the insured is riding or driving on a public highway . . ..
Both parties moved for a summary judgment based upon the pleadings, the insurance contract and a stipulation of facts. Both motions were denied and the case then proceeded to trial. Appellant presented no evidence and its motion for a directed verdict, which was overruled, is not an issue on appeal. A jury awarded the policy benefits to the appellee. Appellant first contends for reversal that the trial court erred in denying appellant's motion for summary judgment because there existed no genuine issue as to any material fact and, therefore, appellant was entitled to judgment as a matter of law.
A sufficient answer to this contention is that the denial of a motion for a summary judgment is not reviewable on appeal when, as here, the cause then proceeds to trial on its merits. Deposit Guaranty v. River Valley, 247 Ark. 226, 444 S.W.2d 880 (1969), and Ross v. McDaniel, 252 Ark. 253, 478 S.W.2d 430 (1972). See also Widmer v. Fort Smith Veh. & Mach. Co., 244 Ark. 971, 429 S.W.2d 63 (1968).
Appellant next contends that the trial court, 'upon denial of appellant's motion for summary judgment, erred in failing to determine, and to set out, the facts about which there was no genuine issue or controversy' as required by Ark.Stat.Ann. § 29--211(d) (Repl.1962). This statute requires the court to make an order specifying the facts that appear to be without substantial controversy and, upon trial, the specified facts shall be deemed established and the trial conducted accordingly. Appellant relies upon Young, Adm'r v. Dodson, 239 Ark. 143, 388 S.W.2d 94 (1965). The case at bar proceeded to trial without any request for such an order or an objection by appellant as to the asserted noncompliance with the procedural requirements of the statute. Although, there was a stipulation of facts, it appears the appellant did not ask that the stipulation be presented to the jury to avoid the necessity of testimony by the appellee upon the agreed facts. In fact, it appears appellant acquiesced in the procedure and thoroughly cross-examined the witnesses. Although formal exception to the action of the court is no longer required, it is necessary to make known to the court the action desired or make objection to the court's action and the grounds therefor. § 27--1762. A matter to which no objection is made during the trial is not reviewable on appeal. Sherman, Adm'x v. Mountaire, 243 Ark. 301,...
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...evidence was objectionable. Baxter cites Cain v. Songer, 176 Ark. 551, 3 S.W.2d 315 (1928), and Life and Casualty Insurance Co. of Tenn. v. Gilkey, 255 Ark. 1060, 505 S.W.2d 200 (1974). Both cases are distinguishable in that the instructions refused in those cases were not covered by other ......
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