United States Fidelity & Guaranty Co. v. Hoflinger, 125.

• Decision Date: 01 February 1932
• Docket Number: No. 125.,125.
• Citation: 45 S.W.2d 866
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. HOFLINGER.
• Court: Arkansas Supreme Court

Page 866

45 S.W.2d 866

UNITED STATES FIDELITY & GUARANTY CO. v. HOFLINGER.

No. 125.

Supreme Court of Arkansas.

February 1, 1932.

Appeal from Circuit Court, Randolph County; John L. Bledsoe, Judge.

Action by Joseph M. Hoflinger, as executor of the estate of Joseph Froitzheim, deceased, against the United States Fidelity & Guaranty Company of Baltimore, Maryland. Judgment for plaintiff, and defendant appeals.

Affirmed.

Wm. M. Hall, of Memphis, Tenn., and Lamb & Adams, of Jonesboro, for appellant.

Wm. F. Kirsch, of Paragould, for appellee.

BUTLER, J.

Rev. Joseph Froitzheim was insured by the appellant company against accidental bodily injuries, fatal or nonfatal, and while the policy was in full force and effect suffered a sunstroke from which he died. It was alleged in the complaint brought to recover on the policy "that while not making undue exertion or effort at some time during the afternoon of said day, the insured accidentally suffered a sun-stroke at his home in Pocahontas in Randolph County, Arkansas, as a result of and from the effects of which, he, at the same place at about 7:30 o'clock in the evening of the same, died."

A general demurrer was filed to the complaint which was overruled by the court, and the defendant electing to stand upon the demurrer, the court on the same day rendered final judgment in favor of the plaintiff in the amount sued for.

The sole question presented is whether or not recovery may be had for death from sunstroke suffered by the insured while not making any undue exertion or effort and engaged in his customary activities, without intervening injury, under the terms of the policy sued on. By subparagraph No. 1 the policy insured the deceased against "accidental bodily injuries, fatal or nonfatal, being hereinafter referred to as `such injury.'" Under Schedule 2, titled "Special Indemnity," is the following provision: "Blood poisoning, sun stroke, freezing, hydrophobia or asphyxiation due solely to such injury (excluding suicide, sane or insane, or any attempt thereat) shall be considered as covered by this policy."

It is the contention of the appellant that a proper construction of the policy limits liability for sunstroke to only those cases where it is the result of some antecedent mishap or injury and that this is clearly indicated by the words in Schedule No. 3, "due solely to such injury." The contention is made that this is the holding of the court in the case of Southern Surety Co. v. Penzel, 164 Ark. 365, 261 S. W. 920, 922, in construing a policy worded identically as the policy sued on. In that case the court did not pass upon the question presented in the case at bar. The blood poison, in that case, developed at a date subsequent to the happening of the injury, but within thirty days thereafter. The policy provided for a certain indemnity to be paid for total disability commencing on the date of the accident and for one-half of that amount where the injury did not from the date of the accident wholly disable the insured but should do so within thirty days thereafter. Another provision in the policy was to the effect that blood poison, sunstroke, freezing, et cetera, due solely to such injury (excluding suicide, sane or insane), should be considered as covered by the policy. It was contended that the paragraph including blood poisoning and the other things mentioned therein in a class to themselves exempted them from the conditions of the policy above referred to providing for indemnity in a certain amount where total...