Mutual Benefit Health & Accident Association v. Tilley

• Decision Date: 03 October 1927
• Docket Number: 189
• Citation: 298 S.W. 215,174 Ark. 932
• Parties: MUTUAL BENEFIT HEALTH & ACCIDENT ASSOCIATION v. TILLEY
• Court: Arkansas Supreme Court

298 S.W. 215

174 Ark. 932

MUTUAL BENEFIT HEALTH & ACCIDENT ASSOCIATION v. TILLEY

No. 189

Supreme Court of Arkansas

October 3, 1927

Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor affirmed.

Decree affirmed.

Strait & Strait, for appellant.

Edward Gordon, for appellee.

OPINION

WOOD J.

The plaintiff below, appellee here, instituted this action in the chancery court against the defendant below, appellant here on a policy insuring James Richard Holder against death by accident in the sum of $ 1,000. The appellee alleged that the assured was murdered by his wife, the beneficiary named in the policy; that she thereby forfeited her claim to the insurance, and that the appellant was holding the same in trust for the estate of the deceased, which the appellee, as administrator, was entitled to recover on behalf of the estate of the deceased, James Richard Holder. The appellee alleged compliance with the terms of the contract on the part of the assured before his death and a compliance with the terms of the contract on the part of the appellee since the death of the assured, in order to entitle appellee to recovery. The prayer was for the amount of the policy, and the statutory penalty, and a reasonable attorney's fee.

The appellant answered, admitting the issuance of the policy as alleged in the complaint, but denied its other allegations and set up that appellee was barred by judgment that had been recovered by the beneficiary in the policy at a former term of the circuit court, and pleaded such judgment as res judicata. Testimony by deposition on behalf of the appellee was taken in this cause. On the 29th day of June, 1926, the same being a day of the June term, a hearing was had upon the pleadings and proof adduced. At the close of the testimony the court indicated to the attorney for the appellee that the proof was not sufficient to justify a recovery, and thereupon the attorney for the appellee asked leave to take a nonsuit, which leave the court granted, and dismissed the action without prejudice. Thereafter, on the 26th day of October, 1926, the same being a day of an adjourned term of the chancery court, the appellant filed the following motion:

"On the 29th day of June, 1926, which date was a day when the present term of this court was in session, the above cause was submitted and tried in this court, and at the termination of said trial, this court announced that its findings and decree would be against the plaintiff and for the defendant upon the merits of this cause, and that upon said findings this defendant was entitled to have decree entered; that thereupon the plaintiff, after the submission and trial of said cause, and after the depositions of witnesses had been introduced and read in said trial, and after the court announced what its decision and decree would be, asked permission to take a nonsuit in said cause, which said permission was granted, and a nonsuit and dismissal without prejudice was thereupon entered in this cause. That said plaintiff had no right to take a nonsuit at said time; that this court was without authority to grant same, and that this defendant was entitled to have the decree in its behalf upon the merits rendered and entered of record. Wherefore it prays that said nonsuit and dismissal be set aside and that the decree be rendered in this cause upon the merits in behalf of the defendants."

The court heard the motion upon the facts as above set forth, and, after argument of counsel, found as follows:

"That, at the time the plaintiff entered a nonsuit, the cause came on to be heard; that, after reading the testimony and before the argument of counsel, the court indicated to the attorney for plaintiff that he did not think his proof was sufficient. Whereupon the attorney for plaintiff asked leave to take a nonsuit, and dismissed the cause without prejudice, which was at the time by the court granted, and the court finds from the foregoing facts that plaintiff moved for nonsuit before the final submission of the case." The court thereupon entered a decree dismissing the motion of appellant, without prejudice, from which decree is this appeal.

Section 1261 of C. & M. Digest reads in part as follows: "An action may be dismissed without prejudice to a future action First. By the plaintiff before the final submission of the case to the jury, or to the court, where the trial is by the court." Then follow other subdivisions, not necessary to set forth, and the section concludes as follows: "In...