Prudential Ins. Co. of America v. Croley, 4-5723.

• Decision Date: 08 January 1940
• Docket Number: No. 4-5723.,4-5723.
• Citation: 135 S.W.2d 322
• Parties: PRUDENTIAL INS. CO. OF AMERICA v. CROLEY.
• Court: Arkansas Supreme Court

135 S.W.2d 322

PRUDENTIAL INS. CO. OF AMERICA v. CROLEY.

No. 4-5723.

Supreme Court of Arkansas.

January 8, 1940.

Appeal from Circuit Court, Garland County; Earl Witt, Judge.

Action by Herman Croley against the Prudential Insurance Company of America to recover under a double indemnity clause in a life insurance policy for insured's death by accidental means. Judgment for plaintiff, and defendant appeals.

Affirmed.

Ralph W. Hyatt, of Newark, N. J., and Rose, Loughborough, Dobyns & House, of Little Rock, for appellant.

Martin, Wootton & Martin, of Hot Springs, for appellee.

McHANEY, Justice.

Appellee is the named beneficiary in a policy of life insurance issued by appellant on the life of Sanford Croley in the principal sum of $1,000. Said policy contained a provision for double indemnity in event of the death of the insured by accidental means, as defined therein. On October 11, 1937, the insured was injured as the result of an automobile accident near Deming, New Mexico, on a cold rainy day, and was taken to a hospital in Deming, about an hour after the accident, after being exposed to the inclement weather. He died with lobar pneumonia eight days later on October 19, 1937. Proof of death was made and appellant paid the principal sum of $1,000, but refused to pay under the double indemnity clause, and this suit followed to collect the additional sum of $1,000, with interest, penalty, and attorney's fees.

Appellant defended on the ground that the death of the insured did not result, directly or indirectly, through bodily injury, nor was it effected solely through external, violent and accidental means. It relied on the provisions of the double indemnity clause that such benefits shall not be payable if death results, directly or indirectly, from bodily or mental infirmity or disease in any form, and asserted that the insured, in violation of instructions, shortly after entering the hospital, exposed himself to the elements a second time, and, as a result, contracted pneumonia from which he died. Trial before the court, sitting as a jury, resulted in a judgment for appellee, hence this appeal.

The policy contains this clause: "Accidental death benefit shall be payable upon receipt of due proof that the death of the insured occurred * * * as a result, directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means, of which * * * there is a visible contusion or wound on the exterior of the body. Provided, however, that no accidental benefit shall be payable if the death of the insured resulted * * * directly or indirectly from bodily or mental infirmity or disease in any form."

For a reversal of the judgment against it appellant insists that the insured did not die of bodily injuries. It concedes that there were bodily injuries and a visible contusion on the exterior of the body, but it is insisted that such injuries had nothing to do with the death of the insured. This argument is based on the testimony of Dr. Colvard who treated insured in the hospital in Deming. His testimony is summarized in a letter to T. H. Malone, manager of the Adjustment Bureau, El Paso, Texas, which was introduced by agreement and treated as his deposition, and is as follows:

                           "Geo. T. Colvard, M. D
                           "118 East Spruce Street
                               "Deming, N. M
                                             "10-28-37
                "Mr. T. H. Malone, Manager
                "Adjustment Bureau
                "El Paso, Texas
                

"Dear Sir:

"In reply to your request for report on the accident and death of Mr. Sanford Croley, who was injured October 11, 1937, and who died on October 19, 1937, will give you the following:

"Injuries:

"1. Contused right upper chest with no fracture of ribs which was verified by X-ray. Subcutaneous hemorrhage under area of contusion.

"2. Lobar pneumonia, acute developing Wednesday, October 13, 1937, which was evident by Thursday, October 14, 1937.

"3. Exposure which included getting wet on the day of the injury had some bearing on the later development of the pneumonia.

"4. A pre-existing asthmatic bronchitis also had some influence in the incidence of the pneumonia and also its prognosis.

"5. Had Mr. Croley followed instructions and remained in bed on Tuesday instead of getting dressed and coming out of the hospital into the rain...