National Life Insurance Company v. Gregg

• Decision Date: 02 March 1925
• Docket Number: 201
• Citation: 269 S.W. 62,168 Ark. 80
• Parties: NATIONAL LIFE INSURANCE COMPANY v. GREGG
• Court: Arkansas Supreme Court

269 S.W. 62

168 Ark. 80

NATIONAL LIFE INSURANCE COMPANY v. GREGG

No. 201

Supreme Court of Arkansas

March 2, 1925

Appealed from Craighead Circuit Court, Jonesboro District; G E. Keck, Judge; reversed.

Reversed and remanded.

Gordon Frierson and Carmichael & Hendricks, for appellant.

The court erred in holding that the covering clause could be extended by waiver. 122 Ark. 468. The company had the right to fix the terms and conditions upon which it would insure appellee. 143 Ark. 374. Where there is no ambiguity, policies of insurance must be interpreted according to the plain import of the language used. 161 Ark. 597. As to the question of the violation of law, we think the case of American National Ins. Co. v. White, 126 Ark. 493 controls in this case. See also, 13 L. R. A. (N. S.) 262; 261 S.W. 320; 132 Ark. 546; 12 Am. St. Rep. 484; 59 Am. St. Rep. 476; 25 Am. St. Rep. 685.

Hawthorne, Hawthorne & Wheatley, for appellee.

There was no error in holding that the covering clause was extended by waiver. 134 Ark. 52; 128 Ark. 92; 96 U.S. 234; 24 L.Ed. 689; 217 U.S. 323; 54 L.Ed. 782; 96 U.S. 234; 187 U.S. 335; 183 U.S. 308; 164 Ark. 75; 53 Ark. 494; 14 R. C. L. 1181, § 357; 25 Cyc. 872 Requests for further proofs of loss constitutes a waiver of known forfeitures. 152 Ark. 64; 14 R. C. L. 1197; 74 So. 807; L. R. A. 1917-D 1091, 164 Ark. 608; 163 Ark. 7; 118 Ark. 22; 53 Ark. 494.

When a clause in a contract of insurance is susceptible of two constructions, that one will be adopted which is most favorable to the assured. 74 N.E. 964; 8 L. R. A. (N. S.) 708; U.S. 25; 46 L.Ed. 64; 46 Tex Civ. App. 394; 102 S.W. 773; 34 L. R. A. 301; 59 Am. St. Rep. 473; 36 S.W. 169.

OPINION

MCCULLOCH, C. J.

1 Appellant issued to George McGee its policy of indemnity for "loss of life or time by either accident or sickness and for loss of limb or sight by accidental means," the total sum payable for loss of life being $ 200. The policy was payable to appellee's intestate, Mary McGee, who was the wife of George McGee. While the policy was in force, George McGee came to his death as the result of a pistol shot fired by Toney Dowell, and this action was instituted against appellant by appellee's intestate, Mary McGee, to recover the sum of $ 200, the amount specified in the policy as a death benefit. There was a recovery in the trial below, and, after the appeal was prosecuted here, Mary McGee died, and the cause was revived in the name of appellee as administrator of her estate.

The pertinent clauses in the policy are as follows:

"Total Accident Disability."

"(A). At the rate of twenty dollars per month for the period, not exceeding five consecutive years, that bodily injuries effected during the life of this policy, solely through external, violent and accidental means, shall, directly and independently of all other causes, wholly and continuously, from date of accident, disable and prevent the insured from performing every duty pertaining to his business or occupation, and require and receive at least once in each seven days the attendance of a legally qualified physician or surgeon, but shall not result in any of the losses mentioned in paragraph C."

"Specific Total Losses."

"(C). If the injuries described in paragraph A shall, independently of all other causes, immediately, wholly and continuously from date of accident disable and prevent the insured from performing every duty pertaining to his business or occupation shall, during the period of such disability and within ninety days from date of accident, solely result in any one of the following specific total losses (suicide, sane or insane, is not covered), the company will pay, in lieu of all other indemnity except that arising under paragraph L * * *, but only one specific total loss (the greater) resulting from one accident will be paid."

"Not Covered."

"(F). This policy does not cover injuries, fatal or non-fatal, which are received as the result of or while violating law or being under the influence of any narcotic or intoxicant or on the right-of-way or other property of a railway corporation, other than stations, platforms or regular crossings prescribed by law, not being at the time a passenger or employee of such railroad in the discharge of duty, or which are caused wholly or in part by the intentional act of any person other than the insured (assaults committed on the insured for the sole purpose of burglary or robbery excepted)."

It is, as before stated, undisputed that George McGee came to his death as the result of a pistol shot fired by Toney Dowell, and the evidence tends to show that Dowell fired the shot intentionally, but was acting in self-defense, but it may be said that the evidence on the matter of self-defense was conflicting.

The court refused to submit the case to the jury and, on the trial, gave a peremptory instruction in favor of the plaintiff for the recovery of the full amount specified in the policy.

Appellant defends on the sole ground that the fatal injury of the assured resulted either while he was violating the law or from the intentional act of Toney Dowell in firing the shot. On the other hand, it is contended by counsel for appellee in support of the judgment, that clause "F"...