Mutual Ben. Health & Accident Ass'n v. Basham, 4-4049.

• Decision Date: 18 November 1935
• Docket Number: No. 4-4049.,4-4049.
• Citation: 87 S.W.2d 583
• Parties: MUTUAL BEN. HEALTH & ACCIDENT ASS'N v. BASHAM.
• Court: Arkansas Supreme Court

87 S.W.2d 583

MUTUAL BEN. HEALTH & ACCIDENT ASS'N v. BASHAM.

No. 4-4049.

Supreme Court of Arkansas.

November 18, 1935.

Appeal from Circuit Court, Johnson County; A. B. Priddy, Judge.

Suit by Mamie Basham against the Mutual Benefit Health & Accident Association. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

Patterson & Patterson, of Clarksville, for appellant.

Reynolds & Maze, of Clarksville, for appellee.

MEHAFFY, Justice.

On May 18, 1923, the appellant issued its policy insuring J. M. Basham against bodily injury sustained through purely accidental means, independently and exclusively of disease, and all other causes.

The appellee, Mamie Basham, was named as beneficiary. J. M. Basham died on January 7, 1934. On July 14, 1934, the appellee brought this suit in the Johnson circuit court, alleging, among other things, that the said J. M. Basham had paid the premiums on said policy up to the date of his death; that Mamie Basham was the wife of J. M. Basham and the beneficiary in said policy; that on December 27, 1933, during the life of the policy, the insured, J. M. Basham, sustained through accidental means an injury to his great toe on the right foot, from which injury he was confined to his bed under the care of physicians, and as a direct result of said injury he died on January 7, 1934; that all the dues on said policy had been paid; that the beneficiary has made proof of loss and duly performed all the conditions of the policy. She asked for judgment for $2,000, the face of the policy, a 12 per cent. penalty, and reasonable attorney's fees.

The appellant answered admitting that the appellant undertook to insure the said J. M. Basham as alleged in the complaint, and admitted that said policy number was correctly set forth in appellee's complaint; admitted that Mamie Basham was the wife of J. M. Basham, and named as beneficiary, but denied that said J. M. Basham carried and kept said policy until the date of his death; denied on December 27, 1933, during the life of said policy, that the said J. M. Basham sustained through accidental means an injury to the great toe on his right foot by dropping some sort of a plank on said toe, or otherwise, and denied that the death of Basham was caused directly or indirectly by any accident of any kind; but alleged that his death resulted from natural causes. It also denied that the dues had been paid, and that the appellant had been notified of the death of Basham; denied that proof of loss was made and all conditions performed.

On January 14, 1935, appellant filed a demurrer to plaintiff's complaint, which was on January 18, 1935, overruled by the court. Also on January 14, 1935, appellant filed a motion to require appellee to exhibit, with her complaint, the policy upon which the action was based. This motion was conceded by appellee, and the exhibit was filed.

The case was tried before a jury and the jury returned a verdict for $2,000. Judgment was rendered for said amount and interest. Judgment was also entered for 12 per cent. penalty, and $350 attorney's fees.

Appellant filed motion for a new trial, which was overruled, and the case is here on appeal.

The appellee testified in substance that she was the plaintiff and that J. M. Basham died January 7, 1934; that he received an injury on December 27, 1933, and was never able to go out after that time; was confined to his bed on January 1, 1934; the great toe on his right foot was red and angry looking; the skin was not broken; he came home at lunch time limping; called a physician before noon on January 1st; witness dressed his foot before the doctor called; the doctor kept his foot bandaged. Witness first called Dr. Boen and then Dr. Will Hunt, Sr. Mr. Basham had a policy of insurance with the appellant, and the premiums were paid up. The policy was exhibited together with the application for insurance.

On cross-examination she testified that she was not present when he received the injury to his toe, and does not know of her own knowledge what caused the bruise on his toe; she only noticed the blue, bruised condition. Basham's health was good before that time. After her husband fell from the scaffold and broke his foot, he had recovered fully. Only one leg was swollen.

Edward Basham's testimony was, in substance, the same as that of appellee. He also said that the bruise was right across the joint where the toe joins the foot. This started swelling and then the whole foot started swelling. After the third day's illness, the whole leg was swollen from the ankle to the knee. Blood blisters about the size of a half dollar came out and burst on their own accord. His leg was swollen three times the ordinary size. His left leg was not swollen at all. J. M. Basham did not complain that morning before he went to work.

On cross-examination, witness testified that his father was a contractor and worked with his men. His father was injured in the fall of 1923 and confined to his home for about ten months, and afterwards had a spell of malaria, and had flu in 1928.

David Basham, another son, testified in substance that he saw his father that morning; he was not complaining; saw him at noon, and he reported he had dropped a piece of wood on his foot; he was limping; he did not continue to work, but was confined to his home; his condition growing worse until January 7, 1934; his foot continued to swell; blisters appeared on his leg and would burst; the doctor kept his leg bandaged; his father was in good health.

Livingston Hardwicke testified that he was connected with his father in the funeral business, and had been actively engaged in it for fifteen years. He assisted in embalming the body of J. M. Basham; the condition of his body was all right except his right leg; from the foot up to the kneecap, was very badly decomposed, and for six inches above the knee was badly swollen; was about two times the size it should be; the other leg was normal.

W. M. Hardwicke testified that he was an undertaker and funeral director and had charge of the J. M. Basham funeral; found that he had blood poisoning; had a very badly swollen right leg full of blisters, and the toe was badly swollen.

Allie Kraus visited Basham when he was sick; his foot was badly swollen; his leg was bandaged and badly swollen; prior to that time his health was good.

Dr. A. L. Boen, a practicing physician living in Clarksville, testified he knew J. M. Basham during his lifetime; treated him for malaria in 1929 and 1930; was called to treat him when he died; was called on January 1, 1934, and found him with injury to his toe which was swollen and hurting him; Basham gave the doctor a history of the case; the first day he treated Basham he told him a scantling dropped on his right toe; the skin was a little rough and swollen; found his toe in such condition as would have resulted from such an injury as he did receive; treated him from January 1st until he died; his foot and ankle were swollen, but there was nothing wrong with the other foot.

On cross-examination, Dr. Boen testified that osteomyelitis is an inflammation of the bone marrow; cellulitis is an inflammation of the connective tissues; these are separate and distinct diseases; witness said that he made a statement of Basham's condition to the adjuster, signed and swore to it, and identified his signature. In the statement he said Basham died of osteomyelitis; he thought at the time that was true, but afterwards decided that it was cellulitis. At the time he made the statement, he did not know that Basham had cellulitis; did not change his mind after he made the report until he saw his toe; when he saw his toe later, he knew it was not osteomyelitis; did not see his toe until the autopsy was held, which was in November, 1934.

W. R. Hunt testified that he was a practicing physician living in Clarksville; treated J. M. Basham in January, 1934; went to Basham's house on the morning of the 6th and stayed there several hours; Basham died shortly afterwards; found an injury to his right toe; he did not tell witness the history; he had a case of cellulitis; his right leg was swollen to two or three times its normal size.

Earl Hunt testified that he was a practicing physician and surgeon; knew Basham but did not see him before he died; examined his body at the post mortem.

Jim Brock, a witness for appellant, testified that he knew Basham; in 1933 talked with him about his health; Basham had worked for witness in 1928 and told witness that he could not work like he did then.

Dr. H. S. Thatcher testified that he lived in Little Rock; was professor of pathology at the University of Arkansas Medical College, a director of that department, and had charge of the laboratory; had seen about ten thousand autopsies; had done about five thousand himself; he described how the autopsies were performed, and said that he made an autopsy on the body of J. M. Basham on November 3, 1934; the body had been well embalmed, and the interior well preserved; found the kidney was diseased, and no evidence of cellulitis; no evidence of blood poisoning; cellulitis is a germ disease; there could be no infection to a man's toe without breaking the skin; was able to ascertain the cause of Basham's death; he died from chronic condition of the heart and kidneys, chronic nephritis, commonly known as Bright's disease; this disease is fatal; he showed dropsy in both sides of his chest; dropsical condition produces a swollen condition of the leg; dropsy first appears in the lower limbs; in nephritis the heart is usually enlarged; the heart of Basham was enlarged. Witness submitted his report of the condition found in the autopsy of Basham. His death was caused from chronic condition of heart and kidneys; chronic nephritis; this could not result from cellulitis.

On cross-examination witness said he found a bandage on the right leg and toe; the swelling, if any, had gone out; often one leg is swollen...