Life & Casualty Ins. Co. of Tennessee v. De Arman

• Decision Date: 13 January 1936
• Docket Number: No. 4-4095.,4-4095.
• Parties: LIFE & CASUALTY INS. CO. OF TENNESSEE v. DE ARMAN.
• Court: Arkansas Supreme Court

Page 206

90 S.W.2d 206

LIFE & CASUALTY INS. CO. OF TENNESSEE v. DE ARMAN.

No. 4-4095.

Supreme Court of Arkansas.

January 13, 1936.

Rehearing Denied February 17, 1936.

Appeal from Circuit Court, Sebastian County, Fort Smith District; J. Sam Wood, Judge.

Action by Ardena F. De Arman against the Life & Casualty Insurance Company of Tennessee. Judgment for plaintiff, and defendant appeals.

Reversed and dismissed.

Sydney F. Keeble, of Nashville, Tenn., and Cravens, Cravens & Friedman, of Fort Smith, for appellant.

Warner & Warner, of Fort Smith, for appellee.

BUTLER, Justice.

Earl B. De Arman procured a policy of insurance from the appellant company for a weekly premium of 5 cents. The policy provided, among other things, for the payment of the sum of $1,000 in the event the insured should be accidentally killed in the manner set forth and limited by the policy. The applicable provisions are as follows: "Or if the insured shall by collision of or any accident to any * * * public automobile, public stage or public bus which is being driven or operated at the time by one regularly employed for that purpose, and inside of which the insured is legally traveling; or by collision of or any accident to any private horse-drawn vehicle or private motor driven automobile inside of which the insured is riding or driving, or any motor driven truck inside of which the insured is riding or driving; * * * provided that in all cases referred to in this paragraph there shall be some external or visible injury on the said vehicle * * * of the collision or accident, provided that an injury to the tire on such vehicle shall not be considered an injury to the vehicle. * * *"

The case was submitted to the court upon an agreed statement of facts, and the court found in favor of, and rendered judgment for, the appellee in the amount named in the policy.

The pertinent facts are that Earl B. De Arman, at a time when the policy was in full force and effect, was killed as a result of bodily injuries occasioned solely by external, violent, and accidental means. Appellee was the beneficiary named in the policy. At the time of the fatal injuries, the insured was an employee of England Bros. Truck Line, which was, and is, a duly and lawfully authorized public carrier of live stock and other property by motor vehicles operating in the state of Arkansas, and, at the time of his death, the insured was acting in line of his duty. He, with a fellow servant, was engaged in operating a 1½-ton Chevrolet truck equipped with a body suitable and of the usual type for transporting live stock. In operating the truck when loaded with live stock, two employees were required, who alternated in driving the truck and attending to the animals loaded therein. The truck had a runway or extension on the outside of the body which extended along either side thereof level with the floor. This was the means provided for tending the animals loaded in the truck. Upon this extension the employee tending the stock could walk or stand while the truck was in motion.

On October 25, 1934, the truck was loaded with eleven head of horses and mules which were being transported from Oklahoma to Dermott, Ark., for delivery. All of the animals loaded in said truck were tied to stakes in the sides of the body by halter ropes with their heads alternately extending outward toward the outside of the body on each side of the truck. The insured was required to use said runway while the truck was moving in the discharge of his duty with respect to the animals, and was so using the runway at the time he was fatally injured.

At a time when insured's fellow servant was driving the truck, one of the mules started a disturbance, and it became necessary for the insured to get out on the runway to attend to him. The truck was being driven at a slow rate of speed, and was stopped while the insured got out on the runway to quiet the mule. While the insured was thus engaged, the truck was again started, and it passed under the limb of a tree extending partially over the highway. As the truck was passing under this limb, the head of one of the mules came in contact with it, cutting a gash in the mule's head, and causing it to break the halter by which it was fastened to the side of the body of the truck. This occasioned a disturbance and shifting of the load within the body of the truck, which resulted in the insured's falling or being thrown from the truck and killed.

There was no collision of any part of the truck with the limb of the tree or any external or visible injury on said truck of collision or accident thereto, but immediately after the accident one end of the halter rope which was broken was found tied to the body of the truck, the other end remaining upon the mule which had received the cut, and some of the hair from the mule's head was stuck to the limb of the tree.

It is the contention of the appellant that from this state of facts it appears that there was no collision of, or accident to, the truck, nor was there any external or visible injury on the truck as required by the provisions of the policy; that for this reason appellant is not liable for the accidental death of the insured. It is the theory of appellee that, notwithstanding certain clauses of the policy providing for a strict and literal construction, the policy should be liberally construed under settled doctrines of this court, and that, when so interpreted, the facts are sufficient to establish an...