Mid-Continent Life Ins. Co. v. Hill, No. 4-4299.

• Court: Supreme Court of Arkansas
• Writing for the Court: Mehaffy
• Citation: 94 S.W.2d 364
• Docket Number: No. 4-4299.
• Decision Date: 04 May 1936
• Parties: MID-CONTINENT LIFE INS. CO. v. HILL.

94 S.W.2d 364 MID-CONTINENT LIFE INS. CO.
v.
HILL. No. 4-4299. Supreme Court of Arkansas. May 4, 1936. Rehearing Denied June 8, 1936.

Page 365

Appeal from Circuit Court, Pope County; J. B. Ward, Special Judge.

Action by Mrs. J. F. Hill against the Mid-Continent Life Insurance Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Rittenhouse, Webster & Rittenhouse, of Oklahoma City, Okl., and Hays & Smallwood, of Russellville, for appellant.

Neal King, of Russellville, for appellee.

MEHAFFY, Justice.

On May 14, 1925, the Mid-Continent Life Insurance Company issued and delivered to James Franklin Hill its life insurance policy, insuring his life in the sum of $2,500, with double indemnity in case of accidental death. The policy was placed in the Bank of Atkins, Atkins, Ark., by Hill, and remained there until his death. None of his family ever saw the policy and knew nothing of its provisions. All premiums were paid, including the double indemnity premium, and the policy was in full force and effect at the time of Hill's death.

On March 12, 1933, the body of Hill was discovered in the back waters of an overflow near his home. The feet were lying on the edge of the levee and only the toes showing. The body was flat on its back down in the water two or three feet deep. His gun was found leaning against a bush on the levee. The body was lying between two bushes in the water, and his left hand was grasping one of the bushes.

On the same day that Hill's body was found, March 12, 1935, the Bank of Atkins, which had the policy in its possession, notified the insurance company at Oklahoma City of the finding of the body. The following is the letter written by the bank: "Gentlemen: The body of James F. Hill, insured under your policy No. 48198, was found drowned this morning in a canal or bayou about seven to eight miles East of here. Some people think it was an accident, other that he died of some heart disease. We hold this policy in question for safekeeping and it has been with us ever since it was issued, so please forward us proper blanks for the claimant, his wife, to execute. * * *"

This notice was received by the insurance company in Oklahoma City on March 13, 1935, the day after Hill's body was found. The company, on March 14, 1935, issued its check dated at Oklahoma City for the sum of $2,175.07. This was the face of the policy, less Hill's indebtedness to the company for borrowed money. Mr. R. H. Amrein came to Atkins with the check on March 15. The policy was secured from the bank and the check delivered to Mrs. Hill, the beneficiary, on March 15, and Mrs. Hill signed the following receipt:

"Received of the Mid-Continent Life Insurance Company of Oklahoma City, Oklahoma, the sum of Two Thousand one hundred seventy-five and 07/100 Dollars, in full payment and satisfaction of all claims whatsoever under the above policy.

"In consideration of which payment we hereby forever release the said company from all liability to us, our heirs or assigns under said policy.

"Witness our hands and seals at Atkins, Arkansas, this 15th day of March, 1935.

 "Willie F. Hill.
                "Signed in the presence of
                 "D. L. Barker
                 "R. H. Amrein, Witness."
                

On July 13, 1935, appellee filed suit in the circuit court of Pope county, Ark., under the double indemnity clause of the policy for $2,500, attorney's fees, and 12 per cent. damages.

The appellant filed answer denying the material allegations of the complaint, and specifically denied that Hill died from external, violent, and accidental means, and alleged that he died a natural death, and that appellant had, on March 15, 1935, paid the beneficiary the full amount of the policy less indebtedness, and that, as a part and parcel of the same transaction, the appellee executed and delivered to the appellant the receipt above set out. It also alleged that no proof of death, as required by the policy, was made by the appellee.

There was a trial, and at the close of the evidence each party asked for an instructed verdict. The court rendered a verdict in favor of the appellee for $2,500, with 12 per cent. penalty and $250 as attorney's

Page 366

fees. This appeal is prosecuted to reverse the judgment.

The evidence on the part of the appellee shows that J. F. Hill, on the morning of March 12, 1935, after he had eaten his breakfast, took his gun and told his wife he was going to see about the back water. His body was found the same day, and his gun was found resting against the small tree near by. The body was found in the canal, and, when taken out, water ran out of Hill's mouth, about a half gallon of muddy water ran out of his mouth and nose. The body was found among some bushes in the water, and Hill had hold of one of the bushes with one hand. After the witness who discovered him ran his hand over Hill's bosom, more water ran out of his mouth and nose. When the body was found, the head was about three or four inches under water. On the same day the appellant was notified in Oklahoma City, Okl., that the body was found drowned. The letter also stated that some people thought it was an accident and others thought that he died of some heart disease. All the witnesses who saw the body at the time it was taken out of the water testified that a large quantity of water ran out of his mouth and nose.

Mrs. Hill and her daughter, Mrs....