133 Ark. 163 | Ark. | 1918
(after stating the facts). In sustaining the demurrer the court seems to have proceeded upon the theory that from the allegations of the complaint that the person inflicting the injury must have intended to do it and that it was not therefore “accidental” within the legal meaning of that word as used in the policy. This is not the, law.
In Maloney v. The Maryland Casualty Co., 113 Ark. 174, the court held that if an injury occurs without the agency of the insured, it will be held to be “accidental,” even though it may be brought about designedly by another person. Other authorities holding that death or injury by “accidental” means death or injury from any unexpected event which proceeds from an unknown, and unforeseen cause, happening without the design of the person acted upon, are Lovelace v. Traveler’s Protective Association, 126 Mo. 104, 30 L. R. A. 209, 47 Am. St. Rep. 638; Richards v. Traveler’s Insurance Co., 89 Cal. 170, 23 Am. St. Rep. 455; Paul v. Traveler’s Insurance Co., 112 N. Y. 472, 8 Am. St. Rep. 758, and Button v. American Mutual Accident Association, 92 Wis. 83, 53 Am. St. Rep. 900. This is in the application of the rule that policies of insurance are to be liberally interpreted, and conditions therein must be construed strictly against those for whose benefit they are reserved. So far as the allegations of the complaint are concerned, the injury was “accidental” within the legal meaning of that term as used in accident insurance policies. The demurrer admits the allegations of the complaint to be true, and there are' no allegations in the complaint from which it could be legally inferred that the injury was inflicted upon the person of the plaintiff with his knowledge, much less by design on his part. Conceding the allegations of the complaint to be true, it is probable, or at least possible, that a third person approached the-insured while he .was asleep, chloroformed him and inflicted the injuries on him while he was in an unconscious condition.
Sometimes accident insurance policies contain a provision that the policy shall not extend to injuries or death resulting from intentional injuries inflicted by the insured or by any other person. The fact that the injury or death did not result from such exceptions need not be negatived in the complaint but is a matter of affirmative defense and must be averred by the insurer. The burden is upon the company to show that the injury or death was caused by a breach of this condition. Ætna Life Insurance Co. v. Taylor, 128 Ark. 155.
It follows that the court erred in sustaining the demurrer to the complaint and for that error the judgment must be reversed and the cause remanded for a new trial.
