Maloney v. Maryland Casualty Company

Decision Date18 May 1914
Docket Number326
Citation167 S.W. 845,113 Ark. 174
PartiesMALONEY v. MARYLAND CASUALTY COMPANY
CourtArkansas Supreme Court

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

STATEMENT BY THE COURT.

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, towit:

"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, Arkansas, 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, Arkansas. 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 bed-pan under him, let it slip and strike him. He cried out at the time that he was hurt. The bed-pan 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 fifteen or twenty 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 bed-pan 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 bed-pan 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 bed-pan 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.

Judgment reversed and cause remanded.

James C. Knox and Patrick Henry, for appellant.

1. Under the holding of this court in the Meyer case, 106 Ark. 91, appellee would be liable, notwithstanding the deceased was afflicted with a disease, if the death resulted when it did on account of the aggravation of the disease from accidental injury.

The trial court's theory of the law as expressed in the instructions given is in direct conflict with the opinion in that case.

2. As to the burden of proof, it was only incumbent on appellant to prove that the injury was the result of external, violent and accidental means, and when that was done the burden shifted to the appellee to show that the insured in fact died from other causes. 73 S.W. 592.

3. The provisions in the policy as to notice, contemplated two kinds of notices, one where the injury is other than those named in the last sentence, and the other those mentioned in the last paragraph thereof. 85 F. 401; 27 S.W. 436.

Want of notice is purely a matter of defense, to be specially pleaded, and the burden is on the defendant to show a forfeiture on that ground. 53 P. 242; 13 N.E. 604; 13 Gray 431; 71 P. 423; 16 N.Y.S. 27. Even if the burden was on appellant to establish the fact of having given the notice, there is no dispute in the evidence, and where the evidence as to the time notice was given is not disputed, it is for the court, and not for the jury, to say whether it was given in a reasonable time. 27 S.W. 436; 8 Gray, 33; 24 N.E. 1041; 17 N.Y. 609; 12 N.E. 315.

4. The fourth instruction is erroneous. There was no burden on appellant to show that disease was not an indirect cause of the death, but it was incumbent on appellee to show a substantial proximate connection between the disease and the death. 73 S.W. 592.

5. Instruction 7 was patent error. An injury resulting from a cause not the design of Maloney himself was accidental within the meaning of the policy. 17 So. 2; 91 N.W. 135; 60 S.W. 492; 16 S.W. 723; 40 S.W. 1080; 26 P. 762; 8 S.W. 570; 28 S.W. 877; 61 N.W. 485; 36 S.W. 169; 68 F. 825.

6. The court erred in the ninth instruction, charging the jury that deceased warranted his habits of life to be correct and temperate, and directing the jury to find for the defendant if the evidence showed that his habits were not temperate. The words "no exceptions" appearing at the conclusion of the warranty clause qualify only the last sentence, and can not be construed to qualify the first sentence in any way.

The application being on a printed form furnished by the company, its language will be construed most strongly against the company. 1 Cyc. 245; 65 Ark. 59; 38 F. 19; 60 A. 180; 115 N.W. 869.

Moreover, the company's agent, as he testified, drew up the application for Maloney himself, and the company is estopped from setting up this defense. 41 S.W. 1093, 64 Ark. 253; 13 S.W. 799, 53 Ark. 215; 40 N.W. 469; 69 N.Y. 128; 79 S.W. 733; Id. 119; 85 S.W. 103; 13 Wall. 222; 36 N.Y. 550; 42 N.Y.S. 52.

Williamson & Williamson, for appellee.

Since the evidence conclusively showed that no notice of the injury was ever given, or opportunity afforded to investigate, and that no notice was given of any kind until after Maloney's death, and since the policy stipulated that noncompliance with the requirements as to notice would forfeit the policy, appellee was, as a matter of law, entitled to a directed verdict. Hence, the judgment should be affirmed, regardless of whether or not errors occurred in the trial. 4 Cooley's Briefs on Law of Insurance, 3570; 1 Cyc. et seq.; Id. 276, 277, cases there cited.

The notice of accident, as provided by the terms of the policy, is a condition precedent to recovery. 197 Mass. 101, 14 Am. & Eng. Ann. Cas. 209, and authorities collated in note at page 292; 71 Ark. 126; 87 Ark. 171.

In this case the stipulation for forfeiture is in the contract, which brings it within the rule laid down in Hope Spoke Company v. Maryland Casualty Company, 102 Ark. 11, which is in accord with general authority. 176 Mo. 253, 75 S.W. 1102; 88 S.W. 127; 83 P. 1015; 4 Cooley's Briefs, 3457.

There can be no force in the contention that in the event of the death of the insured no notice need be given. 142 F. 653-659.

OPINION

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

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 can not 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' Assn. v Smith, 85 F. 401, the policy provided that "in case of any accident or injury for which claim is to be made under this certificate, or, in case of death resulting therefrom, immediate...

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