{ "id": 8724303, "name": "Bankers National Insurance Company v. Hemby", "name_abbreviation": "Bankers National Insurance v. Hemby", "decision_date": "1950-10-23", "docket_number": "4-9267", "first_page": "749", "last_page": "755", "citations": [ { "type": "official", "cite": "217 Ark. 749" }, { "type": "parallel", "cite": "233 S.W.2d 637" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "113 A. L. R. 857", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "200 Ark. 508", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453477 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/200/0508-01" ] }, { "cite": "212 S. W. 310", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "138 Ark. 442", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1566868 ], "opinion_index": 0, "case_paths": [ "/ark/138/0442-01" ] }, { "cite": "288 S. W. 883", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "172 Ark. 344", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1407893 ], "opinion_index": 0, "case_paths": [ "/ark/172/0344-01" ] }, { "cite": "52 S. W. 2d 733", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "186 Ark. 46", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718328 ], "opinion_index": 0, "case_paths": [ "/ark/186/0046-01" ] }, { "cite": "31 L. R. A., N. S., 873", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "182 F. 590", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6749328 ], "opinion_index": 0, "case_paths": [ "/f/182/0590-01" ] }, { "cite": "206 Ark. 769", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1485101 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/206/0769-01" ] }, { "cite": "171 S. W. 2d 152", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "206 Ark. 503", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1485132 ], "opinion_index": 0, "case_paths": [ "/ark/206/0503-01" ] } ], "analysis": { "cardinality": 593, "char_count": 10516, "ocr_confidence": 0.493, "pagerank": { "raw": 1.9377872972247543e-07, "percentile": 0.7351254841498481 }, "sha256": "ef3edb5ea7536bb10e01dda7993da3878ef3ebec447a84e8c4d9ffba25531c4b", "simhash": "1:335609234636d512", "word_count": 1782 }, "last_updated": "2023-07-14T21:48:24.265381+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Bankers National Insurance Company v. Hemby." ], "opinions": [ { "text": "Minor W. Millwee, Justice.\nThis is a suit to recover disability benefits on two policies of health and accident insurance issued to appellee by appellant, Bankers National Insurance Company, a foreign insurance corporation unauthorized to do business in this state. Service of summons was obtained under the provisions of Ark. Stats., \u00a7 66-244.\nThe complaint alleged, and appellant admitted at the trial, that appellee was accidentally injured on July 7, 1948, while riding as a fare paying passenger on a bus of the Baum Bus Line at Okolona, Arkansas. As a result of the accident, appellee sustained a bilateral hernia and other injuries rendering him totally disabled for a considerable length of time.\nFollowing a trial the court found that appellee was totally disabled within the meaning of the policies for more than twenty-six weeks as a result of the accident and judgment was.rendered against appellant for $993.70 plus the statutory penalty of 12\u00b0/o and attorney\u2019s fee.\nAppellant first filed a \u201cspecial demurrer\u201d to the jurisdiction of the court alleging that it had not transacted business in this state. The record proper fails to disclose any action on the demurrer. There is a page of docket entries attached to, but not made a part of, the transcript. One of these entries shows that the special demurrer was overruled without exceptions being saved to such ruling. Docket notations cannot be used to supply a deficiency in the record. City of Monticello v. Kimbro, 206 Ark. 503, 171 S. W. 2d 152. Appellant then filed an answer denying generally the allegations of the complaint.\nThe insuring clause of both policies insures appellee, \u201cagainst (1) death, dismemberment, loss of sight or time, dislocations and fractures resulting within thirty days from the date of accident, directly and independently of all other causes, through external, violent and accidental causes, herein referred to as\u2018such injury,\u2019 . . . subject, however, to all the terms, provisions and limitations herein contained.\u201d\n\u25a0Other provisions of the first policy No. HA-20860 material to the issues read: \u201cPart A. The Company will pay the respective following amounts, providing such specific loss occurs as described hereunder in Part A and also as described in the \u2018Insuring Clause\u2019:\nLoss of Life.$1,000.00\nLoss of Both Feet. 1,000.00\nLoss,of Both Hands. 1,000.00\nLoss of Both Eyes. 1,000.00\nLoss of One Arm and One Leg. 1,000.00\nLoss of One Arm and the Sight of One Eye . 1,000.00\nLoss of One Leg and the Sight of One Eye . 1,000.00\nLoss of One Arm. 500.00\nLoss of One Leg. 500.00\nLoss of One Foot. 500.00\nLoss of One Hand. 500.00\nLoss of One Eye. 500.00\n1. If such injury is sustained while the Insured is a passenger on any railroad passenger train on which the Insured is traveling as a fare-paying passenger in a place provided exclusively for the use of passengers.\n2. If such injury is sustained while the Insured is a passenger on any steamship in or on which the Insured is traveling as a fare-paying passenger in or on a place provided exclusively for the use of passengers.\n3. If such injury is sustained while the Insured is a passenger on any street railway passenger car, elevated or subway passenger car, then in passenger service in which the Insured is traveling as a fare-paying passenger in a place provided exclusively for the use of passengers. . . .\n\u201cPart D ALL OTHER ACCIDENTS. ... 2. If the Insured shall in consequence of such injury caused by any accident not otherwise covered by this policy, and not otherwise excluded under any provision, be immediately, wholly and continuously disabled by such injury from attending to any and every kind of work or business, the Company will pay indemnity at the rate of Five ($5.00) Hollars per week the first two weeks and at the rate of Seven ($7.00) Dollars per week beginning with the fifteenth day of such disability but not to exceed a combined total of ten consecutive weeks. . . .\n\u201cPart E If the Insured shall be immediately, wholly and continuously disabled due to such injury under the conditions as set forth in Part A, not incurring any of the specific losses or any of the dislocations or fractures set forth in Part C and be prevented by such injury from performing any and every duty pertaining to any occupation, the Company will pay in lieu of all other indemnity under this policy at the rate of Twenty ($20.00) Dollars per week, not exceeding twenty-six consecutive weeks.\u201d Another provision of the policy contained an exception excluding liability for death or disability resulting from hernia. \u2022\nThe second policy, No. HA-30714, contains the same provisions as above recited with two exceptions: (1) Payments under Part D 2 are at the rate of $10.00 per week for the first two weeks and $15.00 per week for the next thirteen weeks; and (2) Benefits under Part E are at the rate of $30.00 per week.\nThere is no merit in appellant\u2019s contention that recovery should be denied because appellee was the holder of policies with three other companies at the time of the accident. Appellant was informed of such insurance in appellee\u2019s application for the two policies here involved, which provide that the insurance therein shall not be affected by any other insurance held with any other company.\nAppellant also relies on the fact that appellee became disabled as a result of hernia produced by the accident. A subordinate provision of the policy excludes liability for death or disability resulting from hernia and numerous other enumerated diseases, ailments and conditions. Appellant\u2019s answer to the complaint contained a general denial and the exception clause as to hernia was not pleaded as an affirmative defense. Justice Knox, speaking for the court on this point in Southern National Ins. Co. v. Pillow, 206 Ark. 769, 177 S. W. 2d 763, said: \u201cAs a general rule limitation of liability and loss from an excepted cause are matters which must be specifically pleaded by the insurer as an affirmative defense, if he would limit or defeat recovery because of such provision of the policy. 29 Am. Jur. 1069; Mechanics\u2019 Ins. Co. v. C. A. Hoover Distilling Co., (O.C.A. 8th) 182 F. 590, 31 L. R. A., N. S., 873. This court in the case of Missouri State Life Ins. Co. v. Barron, 186 Ark. 46, 52 S. W. 2d 733, applied this rule and held that failure of the insurer to plead that a contributing cause of death fell within the provisions of the policy exempting insurer from liability therefor, constituted a waiver of such exception as a defense. So here failure of appellant to plead that its liability was limited to a return of the premium paid because insured\u2019s death resulted directly or indirectly from pneumonia, amounted to a waiver of such defense. \u2019 \u2019 Bee, also, 46 0. J. S., Insurance, \u00a7 1295. Appellant\u2019s failure to plead the exception as to hernia as an affirmative defense amounted to a waiver of such defense. It is, therefore, unnecessary to determine whether appellant would be relieved of liability even if the clause had been properly pleaded. See Appleman, Insurance Law and Practice, \u00a7 443.\nThe trial court held appellant liable under Part E which provides benefits for disability clue to injury under the conditions set' forth in Part A, that is, if the accidental injury is sustained while insured is a passenger on one of the modes of conveyance specified. It is undisputed that appellee\u2019s injury occurred while traveling on a motor bus and not on one of the types of conveyance designated in Part A. A policy which provides indemnity for accidents occurring while insured is traveling as a passenger in a certain type conveyance includes only accidents received while traveling in the kind of conveyance designated. Rhodes v. U. S. Casualty Co., 172 Ark. 344, 288 S. W. 883; 45 C. J. S., Insurance, \u00a7 762.\nIt is true that prior to institution of this suit appellant rejected appellee\u2019s claim of disability on the exclusive ground that hernia was an excepted risk, and this exception clause was not specifically pleaded. If Part A, when considered in connection with Part E, merely dealt with a ground of forfeiture, appellant might be held to have waived such forfeiture under the rule that where an insurer denies liability for a loss on one ground, at the time having knowledge of another ground of forfeiture, it cannot thereafter insist on such other ground if the insured has acted on its asserted position and incurred prejudice or expense by bringing suit, or otherwise. 29 Am. Jur., Insurance, \u00a7 871. But Part A, as related to Part E, sets forth the scope or coverage of the policy and not merely a condition, the breach of which may be a ground of forfeiture. The rule is that, while a forfeiture of benefits contracted for may be waived, the doctrine of waiver or estoppel cannot be invoked to extend the coverage and thereby bring into existence a contract not made by the parties. Miller v. Ill. Bankers Life Ass\u2019n, 138 Ark. 442, 212 S. W. 310; Hartford Fire Ins. Co. v. Smith, 200 Ark. 508, 39 S. W. 2d 411; 45 C. J. S. Insurance, \u00a7 674 a. Cases pointing out this well recognized distinction are collected in an annotation in 113 A. L. R. 857. We, therefore, conclude that appellee was not entitled to disability benefits under Part E of the policies.\nHowever, we do hold that appellee is entitled to indemnity under Part D 2, s-upra. This clause is boldly headed: \u201cALL OTHER ACCIDENTS.\u201d The language of the clause is somewhat ambiguous and is, .therefore, to be given a liberal construction in favor of the insured. Since appellant is precluded from relying on the exception as to hernia, appellee\u2019s injury and disability were caused by an \u201caccident not otherwise covered\u201d by the policies. While there is some dispute as to the length of time of appellee\u2019s disability, the greater weight of the evidence supports the conclusion that he was totally disabled within the meaning of the .policies for at least 15 weeks. Under this clause appellee is entitled to judgment for $281 less a 25 % reduction on account of his age as provided in another clause which appellee conceded at the trial to be applicable.\nThe decree is accordingly modified by reducing the judgment in appellee\u2019s favor to $210.75. As so modified, the decree is affirmed. The costs in this court will be divided equally between the parties.", "type": "majority", "author": "Minor W. Millwee, Justice." } ], "attorneys": [ "Tackett & Epperson, for appellant.", "P. L. Smith, for appellee." ], "corrections": "", "head_matter": "Bankers National Insurance Company v. Hemby.\n4-9267\n233 S. W. 2d 637\nOpinion delivered October 23, 1950.\nRehearing denied December 4, 1950.\nTackett & Epperson, for appellant.\nP. L. Smith, for appellee." }, "file_name": "0749-01", "first_page_order": 773, "last_page_order": 779 }