{ "id": 1612065, "name": "Aetna Life Insurance Company v. Lemay", "name_abbreviation": "Aetna Life Insurance v. Lemay", "decision_date": "1951-02-05", "docket_number": "4-9366", "first_page": "328", "last_page": "332", "citations": [ { "type": "official", "cite": "218 Ark. 328" }, { "type": "parallel", "cite": "236 S.W.2d 85" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "67 S. W. 2d 186", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "188 Ark. 637", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1428385 ], "opinion_index": 0, "case_paths": [ "/ark/188/0637-01" ] }, { "cite": "33 S. W. 2d 406", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "182 Ark. 873", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1389683 ], "opinion_index": 0, "case_paths": [ "/ark/182/0873-01" ] }, { "cite": "26 S. W. 2d 108", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "181 Ark. 471", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722592 ], "opinion_index": 0, "case_paths": [ "/ark/181/0471-01" ] }, { "cite": "97 A. L. R. 755", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "79 S. W. 2d 78", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "190 Ark. 379", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1421840 ], "opinion_index": 0, "case_paths": [ "/ark/190/0379-01" ] }, { "cite": "206 S. W. 46", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "136 Ark. 84", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1569956 ], "opinion_index": 0, "case_paths": [ "/ark/136/0084-01" ] }, { "cite": "57 S. W. 2d 583", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10250368 ], "opinion_index": 0, "case_paths": [ "/sw2d/57/0583-01" ] }, { "cite": "191 Ark, 679", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1418467 ], "opinion_index": 0, "case_paths": [ "/ark/191/0679-01" ] }, { "cite": "104 S. W. 2d 195", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "193 Ark. 990", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1411187 ], "opinion_index": 0, "case_paths": [ "/ark/193/0990-01" ] } ], "analysis": { "cardinality": 538, "char_count": 7803, "ocr_confidence": 0.473, "pagerank": { "raw": 1.3308886548462796e-07, "percentile": 0.6288988276922709 }, "sha256": "2a79a35ee0a440d3ec4894c1e57f70e62ed29b382b36a1742e725582645826b4", "simhash": "1:632585e51c1da218", "word_count": 1420 }, "last_updated": "2023-07-14T15:20:49.049805+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Aetna Life Insurance Company v. Lemay." ], "opinions": [ { "text": "'Robinson, J.\nThis appeal is the result of a jury verdict for the plaintiff in a suit involving that part of an insurance policy providing for double indemnity in event of accidental death of the insured, John Clint Lemay. By its verdict the jury found that death was accidental within the meaning of the policy.\nThe sole issue here is whether there is substantial evidence to support the verdict. If there is such evidence the ease must be affirmed; otherwise, reversed. The Mutual Life Insurance Company of New York v. Springer, 193 Ark. 990, 104 S. W. 2d 195.\nThe evidence is viewed in the light most favorable to the appellee and we indulge all reasonable inferences in favor of the judgment. Mutual Benefit Health & Accident Ass\u2019n v. Basham, 191 Ark, 679, 57 S. W. 2d 583.\nThe provision of the policy in issue provides: \u201cIf the death of the insured occurs before default in payment of premium and before the first anniversary of the date of this policy which follows the age of 70 years, and such death results directly and independently of all other causes from bodily injuries effected solely through external, violent and accidental means within 90 days from the occurrence of such accident, and if such accident is evidenced by a visible contusion or wound on the exterior of the body (except in case of drowning and internal injuries revealed by an autopsy), and if such death does not result from suicide, while sane or insane, nor from military or naval service in time of war, nor from an aeronautic flight or submarine descent, nor directly or indirectly from disease in any form, then the Company will pay a sum equal to the sum described in this- policy as the sum insured in addition thereto. \u2019 \u2019\nOn the 30th day of May, 1948, the insured, John Clint Lemay, died as the result of a gunshot wound inflicted by Carroll Hamn, the Constable at Stamps, Arkansas. The injury being violent and external the presumption is that it was accidental and the burden is on the Insurance Company to show otherwise. Metropolitan Cas. Ins. Co. v. Chambers, 136 Ark. 84, 206 S. W. 46. However, such presumption- is not conclusive and may be rebutted, Gilman v. New York Life Insurance Co., 190 Ark. 379, 79 S. W. 2d 78, 97 A. L. R. 755; Missouri Pacific Railroad Co. v. Forsee, 181 Ark. 471, 26 S. W. 2d 108; Missouri Pacific v. Hull, 182 Ark. 873, 33 S. W. 2d 406.\nThe facts are substantially as follows:\nHamn is a man 69 years of age, is rather frail, weighing 135 pounds, and at the time of the killing had just three days previously been released from the Veterans\u2019 Administration Hospital where he had been confined for 7 weeks. He has a service connected total disability from the First World War. Lemay had some real or imaginary grievance against Hamn by reason of Lemay having been charged with a misdemeanor. On the morning of the day of the killing Hamn and Lemay had both gone to the grocery store. Lemay was drinking and told Hamn that he, Hamn, had \u201cbutchered\u201d him up. Hamn then saw Lemay was drinking and mad. Lemay \u201cinvited\u201d him out, but Hamn told Lemay he would get out. Hamn left the store because he did not want to have any trouble with Lemay.\nHamn next saw Lemay that afternoon at Baker\u2019s Drug Store. He went in to get a \u201ccoke\u201d and not long thereafter Lemay entered and told Hamn that he had come in there to beat him up; he grabbed Hamn by the collar and tie and attempted to strike him, but missed. Mr. Baker spoke up and said he didn\u2019t want any trouble in there and helped separate the two. The above facts as shown by the evidence stand uncontradicted.\nHamn then testified that after they were separated Lemay stepped off toward the showcase and Hamn stayed at the soda fountain, and shortly thereafter Lemay \u201ccame back at him like a hyena,\u201d grabbed and hit him. Hamn told Lemay to quit beating him and consider himself under arrest. Lemay replied: \u201cI am not considering no arrest, you cannot arrest me. \u2019 \u2019\n\u2018 \u2018 Q. Did you at any time warn him you would have to shoot him?\n\u201cA. I told him I would have to hurt him. I never did say anything about shooting him. I told him I would have to hurt him if he didn\u2019t quit beating on me.\u201d\nWitness was physically unable to defend himself against Lemay. His hands being sore and swollen, he could not have hurt Lemay if he had hit him. There was no way to get out of the door; he could not get loose from Lemay.\n\u2018! Q. Tel] us about the shooting itself.\n\u201cA. I had to stop him some kind of way and that is why I pulled the gun. I never did get it off my hip. I just barely got it out of my scabbard.\u201d Witness was attempting to stop Lemay from beating him.\nMorris Davis, the City Marshal at Stamps, testified that he heard Lemay make the threat that he \u201cwas going, to kill Mr. Hamn.\u201d\nAustin Brown was in the drug store at the time of the difficulty and when he looked Lemay was hitting Hamn and had knocked him over the soda fountain. He and Baker separated them. Hamn was in no position from which he could retreat. After the first separation another customer came in and the three separated the men again. There were three separate encounters. It was on the third encounter that Lemay was shot. Lemay had Hamn by the throat and was choking him down and Hamn pulled his gun and fired.\nThe sum and substance of the testimony of Seth Baker, Morris Davis, Austin Brown, and Carroll Hamn shows clearly that Lemay was the wrong-doer and the aggressor; he brought on the trouble himself, and his conduct and actions were calculated to bring about the very thing that did happen.\nThese witnesses, along with Lin Peavy and Joe Allen, who were called as witnesses by the appellee, were all the witnesses who testified in the case. We have carefully examined the testimony of Peavy and Allen and find that it cannot be classified as substantial evidence which would support a verdict.\nAllen was not in the drug store when the trouble first started, but came in after the initial encounter had taken place, and helped separate the men when the next clash occurred, according to his testimony. Hamn stayed at the soda fountain and Lemay crossed over on the opposite side of the store. The last time he saw them they were near the middle of the store. He also testified that he heard Lemay call Hamn a \u201cG. D: S. O. B.\u201d He did not actually see the shooting.\nLiu Heavy was not in the store prior to the shooting. He testified that as he passed the drug store he saw the two men moving around. At that time they were within two or three feet of each other, and while he was looking the gun was fired; that Lemay was not armed.\nIt is our opinion that the evidence to the effect that Lemay was the aggressor and brought on the difficulty, and persisted'to the point where Hamn shot him in self-defense, is not in substantial dispute, and that the verdict, as a matter of law, is without support.\nThe law in this State covering a situation of this kind is stated in Price v. Business Men\u2019s Assurance Company of America, 188 Ark. 637, 67 S. W. 2d 186. In that case Mr. Justice Humphreys speaking for the Court said: \u201cThe general rule of law is that death resulting from bodily injuries effected solely through accidental means (where the claim is under an insurance policy) does not include death resulting from wounds received in an encounter provoked by the insured, or in which he was the aggressor, and from which he did not attempt to retire in good faith.\u201d See, also, Metropolitan Cas. Ins. Co. v. Chambers, supra.\nSince the case appears to have been fully developed in the Circuit Court, it is our opinion that it should be reversed and dismissed.\nIt is so ordered.", "type": "majority", "author": "'Robinson, J." } ], "attorneys": [ "Owens, Ehrman $ McHaney and John M. Lofton, Jr., for appellant.", "Pat Robinson, for appellee." ], "corrections": "", "head_matter": "Aetna Life Insurance Company v. Lemay.\n4-9366\n236 S. W. 2d 85\nOpinion delivered February 5, 1951.\nOwens, Ehrman $ McHaney and John M. Lofton, Jr., for appellant.\nPat Robinson, for appellee." }, "file_name": "0328-01", "first_page_order": 352, "last_page_order": 356 }