Maloney v. Maryland Casualty Co.

• Decision Date: 18 May 1914
• Docket Number: (No. 326.)
• Citation: 167 S.W. 845
• Parties: MALONEY v. MARYLAND CASUALTY CO.
• Court: Arkansas Supreme Court

Page 845

167 S.W. 845

MALONEY v. MARYLAND CASUALTY CO.

(No. 326.)

Supreme Court of Arkansas.

May 18, 1914.

Appeal from Circuit Court, Drew County; James R. Cotham, Special Judge.

Action by Mrs. Jennie Maloney against the Maryland Casualty Company. Judgment for the defendant, and plaintiff appeals. Reversed and remanded.

Mrs. Jennie Maloney instituted this action against the Maryland Casualty Company to recover upon a policy of accident insurance in which she was named as the beneficiary. The facts are as follows: The policy was issued to Edward S. Maloney, the husband of Jennie Maloney, on the 12th day of January, 1912, for a period of three months. Before the policy expired, it was renewed for an additional period of three months. The policy insured Edward S. Maloney against bodily injuries, effected independently and exclusively of all other causes, through external, violent, and accidental means. The policy also contained the following clause:

"Subject to its terms, limits and conditions this policy covers the assured in the event of death or disability due to freezing, hydrophobia, gas or poison (suicide, sane or insane, or any attempt thereat, not included); likewise in event of death or disability from septicemia or blood poisoning due directly to a bodily injury sustained while this policy is in force."

Section 11 of the policy under the title of "Agreements," reads as follows, to wit:

"11. Written notice must be given to the company at Baltimore, Maryland, or to the agent countersigning this policy, as soon as may be reasonably possible, of any injury for which a claim is to be made, with full particulars and full name and address of the assured or beneficiary as the case may be. Affirmative proof of death, or loss of limb, or sight, or duration of disability must be furnished to the company within two months from the time of death, or loss of limb or sight, or duration of disability for which the company is liable. No suit for recovery hereunder may be brought until after three months from the date of filing final proofs at the company's home office, nor brought at all unless the same shall be instituted within one year from the time of death, or loss of limb, or sight, or termination of disability for which the company is liable. Claims not brought in accordance with these requirements will be forfeited to the company."

E. S. Maloney resided at Monticello, Ark., and in April, 1912, he was at Russellville. While there he was stricken with acute inflammatory rheumatism, and for a period of three weeks from April 23, 1912, he was confined to his bed there, and was then removed to a hospital at Hot Springs, Ark. He was a very large man, and lay on his back nearly all of the time. About a week and a half before his removal, his nurse, while attempting to place a bedpan under him, let it slip and strike him. He cried out at the time that he was hurt. The bedpan struck him at the lower end of his backbone. He was removed from the hospital at Hot Springs to his home at Monticello, and was treated by a physician there some 15 or 20 days before his death. His death occurred on the 15th day of July, 1912. The physician who treated him just prior to his death testified that he died from blood poison, and that the blood poison originated from a sore on the lower part of his spine right at the upper end of the coccyx bone; that the sore extended higher up the longer he lived, and that the end of the coccyx bone seemed to be the center of the sore; that the coccyx bone is the bone next to the spinal column. In short, the physician testified that he died from blood poison, which resulted from the abrasion caused by the sharp end of the bedpan striking his coccyx bone.

The plaintiff did not know of the existence of the policy sued on until about two weeks after her husband's death. As soon as she learned of its existence, she notified the company of her husband's death, and, within the time prescribed in the policy, made proof of his death and sent it to the company.

Evidence was adduced in behalf of the defendant tending to show that there was no abrasion whatever on the insured's back as a result of the bedpan striking him; that the sore described by the physician who treated him just prior to his death was a bed sore, which was caused by the insured lying on his back so long. In short, the testimony of the defendant was to the effect that the blood poisoning which caused Maloney's death did not result from the bedpan striking him, as stated by the witnesses for plaintiff. Other testimony will be referred to in the opinion. The jury returned a verdict for the defendant, and the plaintiff has appealed.

Jas. C. Knox and Patrick Henry, both of Monticello, for appellant. Williamson & Williamson, of Monticello, for appellee.

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

Counsel for defendant contend that the judgment must be affirmed, regardless of the fact of whether the court committed error in instructing the jury. They base their contention upon the ground that the notice of accident, as provided by the terms of the policy, is a condition precedent to recover, and that notice was not given within a reasonable time after the accident happened; but we cannot agree with them in this contention. It is true the accident happened on the 23d day of April, 1912, and that the insured remained conscious until the date of his death, on July 15, 1912, and that no notice was given until the 31st day of July.

In the case of Western Commercial Travelers' Ass'n v. Smith, 85 Fed. 401, 29 C. C. A. 223, 40 L. R. A. 653, the policy provided that "in case of any accident or injury for which claim shall be made under this certificate, or in case of death resulting therefrom, immediate notice shall be given in writing, with full particulars of the accident," and that failure to give such notice would invalidate the claim. The court held that two classes of notices were intended, one an immediate notice of accident or injury when not resulting in death, and the other an immediate notice of death resulting from such injury, the latter to be given by the beneficiary, and that a notice so given in the latter case was sufficient, though no notice of the injury was given before death. See, also, McFarland v. U. S. Mutual Accident Ass'n, 124 Mo. 204, 27 S. W. 436.

Counsel for defendant contend that the above cited cases are not in accord with reason and authority; and in support of their position they cite the case of the Travelers' Insurance Co. v. Nax, 142 Fed. 653, 73 C. C. A. 649, where the Circuit Court of Appeals of the Third Circuit held:

"Where an accident insurance [policy], providing for the payment of a weekly indemnity to the insured in case of an accidental injury, and the payment of the amount of the policy to a named beneficiary in case of his death from such an injury, made it an express condition that `immediate written notice' should be given to the company `of any accident and injury for which claim is made,' such proviso required notice to be given within a reasonable time; and where the insured lived for 72 days after an accidental...