Pacific Mut. Life Ins. Co. v. Smith, (No. 43.)

• Decision Date: 08 December 1924
• Docket Number: (No. 43.)
• Citation: 266 S.W. 279
• Parties: PACIFIC MUT. LIFE INS. CO. v. SMITH.
• Court: Arkansas Supreme Court

266 S.W. 279

PACIFIC MUT. LIFE INS. CO. v. SMITH.

(No. 43.)

Supreme Court of Arkansas.

December 8, 1924.

Appeal from Circuit Court, Boone County; J. M. Shinn, Judge.

Action by Irtie Smith against the Pacific Mutual Life Insurance Company. From judgment for plaintiff, defendant appeals. Affirmed.

Marvin Hathcoat, of Harrison, for appellant.

Shouse & Rowland, of Harrison, for appellee.

HUMPHREYS, J.

Appellee instituted this action against appellant in the circuit court of Boone county to recover $1,000 upon a policy of accident insurance issued by appellant to her husband, Rean V. Smith, by the terms of which appellant agreed to pay appellee said sum in case her husband should die from accidental means during the life of the policy. It was alleged in the complaint that on the 22d day of December, 1922, during the life of the policy, the insured sustained by accidental means a sprain to his ankle which resulted in his death on the 5th day of February, 1923; that the beneficiary had duly performed all the conditions of the policy and was entitled to recover the face value thereof, together with interest, penalty, and attorney's fees. Appellant filed an answer admitting the issuance of the policy but denying liability thereon for the alleged reasons: First, that the insured did not die on account of the sprain to his ankle caused by accidental means; and, second, that appellee failed to comply with a provision in the policy that appellant be given immediate notice in case of the accidental death of the insured. The cause was submitted to a jury upon the pleadings, testimony introduced by the parties, and instructions of the court, which resulted in a verdict and consequent judgment in favor of appellee in the total sum of $1,335, from which is this appeal.

The policy contained the following clauses with reference to notice of the accident and death of the insured:

"Written notice of injury on which claim may be based must be given to the company within twenty days after the date of the accident causing such injury. In case of accidental death immediate notice thereof must be given to the company."

"The failure to give the notice within the time shall not invalidate the policy provided it be shown that it was not reasonably possible to give such notice, and if notice be given as soon as is reasonably possible to give it."

The testimony introduced by appellee tended to show that the insured died as the result of an accidental injury to his ankle, and that introduced by appellant tended to show that his death resulted from an inflammation around the left kidney.

The undisputed testimony revealed that the insured died on the 5th day of February, 1923, after having sprained his ankle on December 22, 1922; that he was buried on the 6th day of February, 1923; that immediately after the funeral appellee, on account of her distress and run-down condition, due to ill health and waiting on her husband, went to her mother's home in the country where she remained until February 12th, at which time she returned to her home and notified appellant of her husband's death.

The court sent the cause to the jury upon instructions which, in effect, told them that in order to recover on the policy the burden was upon appellee to prove by a preponderance of the evidence that the death of the insured resulted from the sprain to his ankle and that notice of his death was given to appellant as soon thereafter as was reasonably...