State Life Insurance Co. v. Ford

Decision Date08 January 1912
Citation142 S.W. 863,101 Ark. 513
PartiesSTATE LIFE INSURANCE COMPANY v. FORD
CourtArkansas Supreme Court

Appeal from White Circuit Court; Hance N. Hutton, Judge; affirmed.

STATEMENT By the Court.

This is an action brought by Joeanna Ford against the State Life Insurance Company of Indianapolis, Indiana, and its bond to recover on a policy of insurance, issued by said Life Insurance Company to her son, Samuel Edward Ford.

The policy contained, among others, the following provision:

"During the premium-paying period of this policy, and excluding any time while the same may be in force as extended insurance all premiums having been duly paid, and this policy being then in force, in the event of the death of the insured resulting from bodily injury, sustained and effected directly through external, violent and accidental means (suicide, sane or insane, not included) exclusively and independently of all other causes, provided such death shall occur within ninety days from the date of the accident, the company will pay to the beneficiary or beneficiaries hereunder, in addition to the amount otherwise due, the sum of two thousand dollars."

The plaintiff was the mother of the assured, and was the beneficiary named in the policy. The death of the assured was caused by a gunshot wound, and he died in about thirty minutes after being shot. The policy was in force at the time of his death.

According to the testimony of J. F. Ball, it appears that Samuel E Ford was an employee in his office. Miss Carrie Pritchard came into the office crying, and said to Ball: "Mr Ball, Mr. Ford accuses me of having reported the tale that is being circulated that Miss Taylor is in the habit of spending two or three hours every day with you locked up in your office." Ford was sitting down when she made this statement. She and Ford had a short quarrel, and she denied having made the statements attributed to her by Ford. The latter said: "You are a liar; you did say it." Miss Pritchard then said: "Ford, you are the biggest liar I ever heard speak; you know I didn't say it." Ford replied: "You damned little whore, you can't call me a liar! I will break your neck with this chair." He arose from his chair, and placed his hands on the back of it as if to strike her, and she immediately walked around him. "I told Ford not to strike her. Ford made no further attempt to strike her, but stood there with hands still on the chair. Miss Pritchard had turned her back on Ford as he was arising from his chair, she took a pistol from her handbag while her back was to Ford, turning around she pushed the pistol in Mr Ford's face and fired. She had walked around Ford four or five steps, but got no further away from him than she was when the quarrel began. She had walked around behind his chair and stood looking out of the window in an unconcerned manner, and then turned in her tracks and shot Ford."

We quote from his testimony as follows:

"Q. Did Mr. Ford continue to have hold of the chair?

"A. After I spoke to him asking him not to strike her, he made no further pretense to strike her.

"Q. But did he or did he not retain his hold on the chair and maintain his position?

"A. He did, but just at this time the gun fired."

Again he stated that at the time Miss Pritchard fired Ford was not making any hostile demonstration towards her. He also says that Miss Pritchard had nothing in her hand except a small handbag when she came into the office, and that he had no intimation that she had a pistol until just as she fired, and that he had a better opportunity to see what she had in her hands than Ford, for he was at all times facing her and Ford was not.

Ball was doing business at Pollock, La., and Ford had been working for him about two and a half years when he was killed.

The policy bears date of March 7, 1910, and recites that it insures the life of Samuel Edward Ford, of Pollock, State of Louisiana.

The plaintiff testified that her son was a single man, and while he worked in Louisiana he still retained his home in Arkansas, and that he had no other home except her house in Searcy, Arkansas.

There was trial before a jury, and a verdict for the plaintiff The defendants have appealed.

Judgment affirmed.

J. N. Rachels, for appellants.

1. Because the pleadings were not complete until the day of the trial, and appellant did not have time to meet the issues after plaintiff took her proof and appellant's attorney, who was forced to sit in the trial, could not, for lack of time, prepare a proper defense, the court abused its discretion in overruling the motion for a continuance. Kirby's Digest, § 1650; 69 Ark. 368; 67 Ark. 142; 79 Ark. 178; 71 Ark. 197; 78 Ark. 536; 77 Ark. 23; 80 Ark 376; 85 Ark. 334; 88 Ark. 177; 89 Ark. 129; 90 Ark. 78; 94 Ark. 430; 94 Ark. 538.

2. Where a policy by its terms covenants to pay a stated amount in the event of the death of the insured resulting from bodily injury sustained and effected through external, violent and accidental means, exclusively and independently of all other causes, and excepts from the risks covered by such policy the death of the insured by his own hand or act, or in consequence of the violation of law, and the facts in evidence show that insured came to his death from a pistol shot wound received at the hands of another with whom he had quarreled and whom he was in the act of assaulting with a deadly weapon, there is no liability on the part of the insurer. Black's Law & Practice on Accident Cases, §§ 1, 8; 1 Am. & Eng. Enc. of L., (2 ed.), 274 and cases cited; Id. 319 and cases cited; 4 Id. 307; Webster, Dict. "Accident;" 1 Rapalje, Law Dict.; 13 Allen (Mass.) 308; 99 Mass. 318; 45 N.Y. 422; 95 Mo. 506; 97 Ind. 478; 99 N.Y. 614; 48 Am. Rep. 658; 120 Mass. 550; 20 Neb. 620; 57 Am. Rep. 848; Richards on Ins. Law 571; 63 Vt. 437; 99 S.W. 930; 73 Ark. 274; 143 F. 271; 63 S.E. 962; 4 L. R. A. (N. S.) 636; 22 Id. 779; 13 L. R. A. 838; 80 F. 368; 97 N.Y.S. 836.

3. There was a misjoinder of parties in this, that the United States Fidelity & Guaranty Company was joined as a party defendant with appellant, whereas the policy issued by appellant was upon the life of a resident of the State of Louisiana, and the Fidelity & Guaranty Company had only undertaken by the bond sued on to indemnify policy holders of Arkansas. 78 Ark. 32-35.

S. Brundidge, Jr., and J. W. & J. W. House, Jr., for appellee.

1. There is no abuse of discretion in overruling a motion for a continuance where the motion itself does not comply with the essentials prescribed by the statute. Kirby's Digest, § 6173. An examination of the motion shows that there was no compliance with the statute, 61 Ark. 88; 71 Ark. 62; 94 Ark. 538, 545.

2. There was no misjoinder of parties. This court holds that sureties on the bond required of an insurance company may be joined as defendants in an action against the insurance company upon a claim based upon a policy. 138 S.W. 990; 91 Ark. 43; 120 S.W. 825; 134 S.W. 95; 86 Ark. 115; 92 Ark. 378.

3. Appellee was really entitled to a peremptory instruction in her favor at the close of the testimony, because there was nothing in the testimony introduced that could warrant a finding that deceased came to his death while violating the law.

Appellant's contention that the insured's death was not accidental within the meaning of the policy is without merit. The word "accident," as used in the policy, must be construed in the light of reason and the intention of the parties to the contract; and, when so construed, there is no question but that the death was the result of an accident. 60 Ark. 384 and cases cited; 68 F. 826; 60 S.W. 492; 28 S.W. 877; 30 L. R. A. 206, note.

The authorities by appellant do not support its contention that as the insured came to his death while in violation of the law, the policy is therefore void, because said authorities are not applicable to the facts here. In order to have forfeited the policy, it must appear that deceased received the mortal wound while engaged in and during the commission of a crime, not merely in consequence of it afterwards; but in this case Ford made no assault upon the woman. He arose to his feet, it is true, put his hand upon a chair and used some harsh language, but made no effort to strike her, was not in the act of striking or of violating any law when he was shot. 13 Allen (Mass.) 309, 316, 318; 45 N.Y. 422, 431; 19 Wall. 531; 57 Am. Rep. 848, 851; 97 Ind. 487; 120 Mass. 550; 99 S.W. 930; 3 Hun 515; 61 N.W. 485; 57 S.W. 614; 165 F. 176; 18 Mo. 109; 8 Am. St. Rep. 1913.

OPINION

HART, J., (after stating the facts).

1. It was made ground of the motion for a new trial that the court overruled a motion for a continuance filed by the defendants.

In the motion, counsel for defendants says that he could prove by Miss Pritchard, in person or by deposition, that Samuel F. Ford assaulted her with a large chair, and that she shot him in self-defense. That the defendant has used its best efforts to reach in person the said Carrie Pritchard that it might take her deposition, but has never been able to communicate with her. That it can locate her and take her deposition.

Counsel for the defendants, in his motion for a continuance, also states that the plaintiff failed to file either the original policy or a copy of it with her complaint, and for that reason he could not prepare a defense to the action.

The court did not abuse its discretion in overruling the defendant's motion for a continuance. Section 6173 of Kirby's Digest relating to motions for a continuance provides that the affidavit must show what facts the affiant believes the witness will prove, and not merely the effect of such facts in evidence, and that the affiant himself believes them to be...

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