140 Ark. 289 | Ark. | 1919
The plaintiff’s husband, Algie M. Johnson, was in the railway mail service for many years prior to his death, which occurred on March 28, 1918, and was a member of the Railway Mail Association, a fraternal insurance society duly incorporated and domiciled at Portsmouth, New Hampshire, with'a branch office at Little Rock. The policy issued by the association to its members insured against, bodily injury “through external, violent and accidental means not the result of his own vicious or intemperate conduct,” and agreed to pay to the member a certain amount per week for disability caused through the aforesaid means, and to pay to the beneficiary named in the policy the sum of $4,000 in case of the death of the member resulting within 180 days from the aforesaid means.
Plaintiff was the beneficiary under her husband’s • policy in said association and this is a suit instituted by her to collect the amount of the policy, and it is alleged that the death of Algie M. Johnson resulted from an accident which occurred on November 20, 1917, while on his mail route between McG-ehee and Warren. The association filed its answer below, defending on the ground that Johnson had forfeited his policy by nonpayment of assessments; that there was no liability on account of failure to give notice of the accident or of the death of Johnson, and that Johnson’s injury and death did not result from accidental means, but resulted from a disease caused by his own vicious and immoral habits. There was a trial of the case before a jury and the verdict was in favor of the plaintiff.
We pretermit a discussion of the question whether or not the assured was required under the constitution and by-laws of the order to pay an assessment levied after the injury occurred. The argument on that point is that the rights of the parties were fixed when the injury occurred, notwithstanding that assessments were levied before death occurred as a result of the injury. We do not decide that question, however.
“In the case of death or disability, the beneficiary shall at once notify the assistant treasurer to whom the member pays his assessments .or the secretary of the association, in writing. As soon as disability ceases, or in cases where disability is likely to continue for some time and partial payment is desired, the injured member shall file his application * *
Again, it is contended that there was no evidence that Johnson received an injury through accidental means. The court excluded testimony offered by the plaintiff as to Johnson’s own statement concerning the cause of his injury. Johnson was, as before stated, a railway mail clerk, and the injury which there was evidence tending to show caused his death, was received while on his run between McGehee and Warren on November 20, 1917.
On the afternoon of the previous day Johnson made the run from Warren to McGehee and spent the night at the latter place and started on the return trip early the next morning. There is proof from the testimony of one of Johnson’s associates, who was with him on the trip, that he was in good health and spirits the night that he spent at McGehee as above stated, and the next morning when he started on the return trip to Warren. The -witness stated that Johnson was apparently in good health, very cheerful and ate a good meal, and that he saw Johnson again on the trip at Monticello and found him apparently feeling well, but when the train reached Warren, Johnson had in the meantime occupied his car alone, he discovered that Johnson had received an injury and had a cut place above his ear from which blood was running. This witness, and another, who was also a mail clerk, and took Johnson’s place on the car, testified that when Johnson walked out of the mail ear he could hardly walk and was dizzy, and had a cut place above the ear and that blood was running from it. These witnesses started to carry Johnson home and procured a buggy for that purpose. He was carried home and numerous witnesses testified to his injured condition. The testimony abundantly establishes the fact that Johnson received a severe bodily injury on the trip described.
The court accepted the defendant’s interpretation of the policy with respect to the character of accident necessary to constitute liability and gave appropriate instructions on that subject. Some of the instructions were refused, but they were repetitions of those given by the court, and we are of the opinion that there was no error committed by the court in its charge to the jury or in refusing to give instructions. It is unnecessary to discuss the court’s charge in detail.
The trial abounded in issues of fact upon which there was sharply conflicting testimony, but those issues have been settled by the verdict of the jury, and we find no error in the record to justify a reversal of the judgment.
Affirmed.