Missouri State Life Insurance Co. v. Barron

• Decision Date: 27 June 1932
• Docket Number: 4-2592
• Citation: 52 S.W.2d 733,186 Ark. 46
• Parties: MISSOURI STATE LIFE INSURANCE COMPANY v. BARRON
• Court: Arkansas Supreme Court

52 S.W.2d 733

186 Ark. 46

MISSOURI STATE LIFE INSURANCE COMPANY v. BARRON

4-2592

Supreme Court of Arkansas

June 27, 1932

Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann Judge; affirmed.

Judgment affirmed.

Allen May and Rose, Hemingway, Cantrell & Loughborough, for appellant.

Sam T. & Tom Poe, for appellee.

OPINION

HUMPHREYS, J.

This is an appeal from a judgment for $ 2,000, twelve per centum statutory penalty, and an attorney's fee of $ 500 rendered in a suit in the circuit court of Pulaski County Second Division, in favor of appellees against appellant, on a certificate of accident insurance under group policy No. ADD-501 carried by the Missouri Pacific Railroad Company to protect John Barron, husband and father of appellees, as well as its other employees, from death resulting from accidental bodily injuries, effected through external, violent and accidental means independent from all other causes * * *.

It was alleged, and the proof introduced by appellees tended to show, that John H. Barron died from heat prostration induced by working in an engine in a roundhouse of said railroad company within a few hours after he was stricken. The certificate of insurance provided that notice of injury and death should be given to appellant within the time provided in the group policy, and the group policy provided for notice to appellant within 90 days after the loss for which claim is made. Appellees did not know of the existence of the certificate until they obtained possession thereof in November, 1930. They employed attorneys on December 2, 1930, who proceeded to make an investigation of the facts and the law applicable thereto, and on May 7, 1931, notified appellant by letter that death had resulted to the insured through accidental means, and demanded payment of the face of the policy. Appellees introduced testimony tending to show that, after discovering the existence of the certificate of insurance, it was a difficult matter to ascertain the real facts surrounding the death of the insured, and to determine whether death resulted from natural or accidental causes, dependent to some extent upon expert testimony, and that their attorneys diligently pursued the inquiry during the five months intervening between discovering the certificate and the demand made for the payment of the face of the policy. Upon receipt of the letter from appellees' attorneys, appellant answered same, denying liability, in which letter it reserved the right to make any defenses it had or might later ascertain.

Appellant first contends for a reversal of the judgment upon the ground that it did not receive notice that the insured died from heat prostration within a reasonable time after appellees discovered the existence of the certificate of insurance. We are unable, as a matter of law, to say that five months was an unreasonable time to make the investigation and determine whether appellant was liable. There is testimony in the record tending to show that the attorneys prosecuted the investigation diligently, and that, in order to make a thorough investigation, the time consumed was actually required. The dispute in the evidence on this point made the issue one for the jury, and not a question of law for the court. The court therefore properly submitted this issue to the jury. Of course, further and more formal proofs of the cause of the insured's death were waived by appellant's denial of liability within the time appellees had a right to give the notice, which was a reasonable time after discovering the existence of the certificate of insurance. AEtna Life Ins. Co. v. Duncan, 165 Ark. 395, 264 S.W. 835. The reservation in the letter, to make any defenses it then had or might later ascertain, did not qualify the denial of liability. The effect of the unqualified denial made within the period appellees had to make formal proof of the cause of the insured's death was to waive it, notwithstanding the reservation contained in the letter.

Appellant next contends for a reversal of the judgment because the court gave instruction No. 3, which is as follows:

"You are instructed that you are the judges of the cause of death of John H. Barron, and, if you find from a preponderance of all the facts and circumstances in evidence in this case that on the 24th day of June, 1929, John H. Barron, a short time after leaving the firebox of a locomotive...