Washington National Insurance Co. v. Clement

• Decision Date: 02 March 1936
• Docket Number: 4-4201
• Citation: Washington National Insurance Co. v. Clement, 192 Ark. 371, 91 S.W.2d 265 (Ark. 1936)
• Parties: WASHINGTON NATIONAL INSURANCE COMPANY v. CLEMENT
• Court: Arkansas Supreme Court

91 S.W.2d 265

192 Ark. 371

WASHINGTON NATIONAL INSURANCE COMPANY v. CLEMENT

4-4201

Supreme Court of Arkansas

March 2, 1936

Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann Judge; affirmed.

Action by Arthur L. Clement against the Washington National Insurance Company.Defendant appeals from an adverse judgment.

Judgment affirmed.

Malcolm W. Gannaway, and William D. Hopson, for appellant.

John R. Thompson and Robert L. Rogers, II, for appellee.

OPINION

HUMPHREYS, J.

This suit was brought by appellee against appellant to recover $ 165 for injuries he sustained while in an automobile on an insurance policy issued by appellant to him providing payment to him of $ 30 a week during total disability resulting from an accident while in an automobile.Appellant admitted the issuance of the policy, that same was in force and effect at the time of the accident, and total and partial disability as a result thereof, which damaged appellee in the sum of $ 165 but denied liability on the ground that appellee was injured while driving his car in an intoxicated condition contrary to law, specifically setting out a clause in the policy which provided that the policy did not cover any injuries sustained by appellee while violating the law.

In the course of the trial, appellant proved that appellee was convicted in a court of competent jurisdiction for a violation of the criminal law by driving his car while intoxicated at the time he received the injuries made the basis of his suit on the insurance policy.It also proved by other witnesses that the appellee was intoxicated at the time he received his injuries.

Appellee introduced witnesses who testified that he was not intoxicated at the time of the accident.

Upon the conclusion of the testimony, appellant requested a peremptory instruction on the ground that appellee's conviction in a court of competent jurisdiction was conclusive of the issue of fact as to whether appellee was intoxicated at the time of the accident, and was res judicata as to the fact in a subsequent civil proceeding.The trial court refused to peremptorily instruct a verdict for appellant, and over the objection and exception of appellant sent the case to the jury to determine whether appellee was intoxicated at the time he received his injuries, instructing them that if he was intoxicated at the time to return a verdict against him in favor of appellant.

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