{
  "id": 1656449,
  "name": "Union Life Insurance Company v. Epperson",
  "name_abbreviation": "Union Life Insurance v. Epperson",
  "decision_date": "1953-01-26",
  "docket_number": "4-9969",
  "first_page": "522",
  "last_page": "526",
  "citations": [
    {
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      "cite": "221 Ark. 522"
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      "cite": "254 S.W.2d 311"
    }
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  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
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    "name_long": "Arkansas",
    "name": "Ark."
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      "cite": "44 L. R. A., N. S., 493",
      "category": "reporters:federal",
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      "reporter": "S.W.",
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    {
      "cite": "106 Ark. 91",
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    {
      "cite": "215 Ark. 416",
      "category": "reporters:state",
      "reporter": "Ark.",
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        1464546
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  "last_updated": "2023-07-14T17:46:24.085624+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Union Life Insurance Company v. Epperson."
    ],
    "opinions": [
      {
        "text": "J. Seaborn Holt, Justice.\nSeptember 5, 1951, appellee, Epperson, sued appellant, Insurance Company, under the terms of a group insurance contract with the Arkansas State Highway Department for injuries received on March 28, 1951, in the course of his employment with the Highway Department. Appellant demurred to the complaint on the ground that it failed to state a cause of action. The court overruled this demurrer and appellant answered denying all liability, and from a judgment for the full amount sought, plus the statutory penalty and attorney\u2019s fee, comes this appeal.\nA jury was empanelled to try the ease October 11, 1951, and at the conclusion of all the' testimony introduced by the parties, both sides ashed for a directed verdict. The court then discharged the jury, took the case under advisement, and on February 4, 1952, rendered judgmeut for appellee for \u201c$931.50 covering all disability and other items for which he is entitled to recover under the policy sued on to and including October 11, 1951,\u201d and on February 27, 1952, during term time, assessed the statutory penalty (\u00a7 66-514, Ark. Stats. 1947) and $350 attorney\u2019s fee.\nFor reversal, appellant contends that the trial court erred in overruling its demurrer and that appellee \u201cdid not discharge the burden of showing that he sustained an accident and that the accident caused his disability, and for this reason, the cause should be reversed and dismissed, having been fully developed at the trial; that there is no substantial evidence to sustain the judgment and that it is based on conjecture and speculation.\u201d\nMaterial facts appear not to be in dispute.\nAppellee, 47 years of age, while employed by the State Highway Department and working in such capacity, suffered a rupture or perforation of a gastric ulcer. He testified, in effect, (quoting from appellant\u2019s abstract) : \u201cThere was a stripped shaft in the pump that pulls the asphalt machine, which shaft was about half buried in the asphalt. The shaft was in the chassis of an old automobile and was right on the ground. Had to -work in a stooped position and in getting it out had to stand straddle of it and 'reaching over to do the work and prising. After I got it loose, I picked it up, stepped out of the frame and laid it on the end of my pick-up truck. During the procedure, pain hit me just like a knife sticking in me and I went out. A doctor was called and gave me a shot and sent me to the hospital. Had been working 35 to 40 minutes before I felt the pain. ... A. I am sure that pain came in the action of me moving this shaft from where it was to the back end of my pick-up truck.\n\u201cThe shaft weighed around 70 to 75 lbs. Was brought to Morrilton in an ambulance and treated by Dr. Mobley, who operated on me that same day. In 1949, Dr. Mobley had told me that I had a stomach ulcer, but it had not been giving me trouble except for a slight indigestion for close to two years. Have not been able to work since March 28, 1951. Made claim to the Workmen\u2019s Compensation Commission and later had correspondence with defendant, which rejected claim.\u201d\nThe insurance policy contained the following pertinent provisions: \u201cDoes hereby insure the employees of the Arkansas State Highway Commission . . . against the effects resulting directly and exclusively of all other causes from bodily injuries sustained by the employees of the Employer solely through external, violent and accidental means while engaged in the course of employment for the Employer, and only while actually performing duties for the Employer . . .\n\u201cLiability Exceptions. Section (4). This policy does not cover: . . . injury resulting from any disease or bodily infirmity.\u201d\nOn the record before us, we have concluded that the complaint stated a cause of action and that there was substantial evidence to support the findings and judgment of the trial court. The facts bring this case within the rule recently reaffirmed by this court in Metropolitan Casualty Insurance Company v. Fairchild, 215 Ark. 416, 220 S. W. 2d 803. There, as here, an injury following over exertion or strain was involved. We there concluded that while there is some conflict in the authorities, we have adopted the view that where an injury following overexertion or strain is unforeseen or unexpected, and is not such as would naturally and probably result from the voluntary act done, but is rather an unusual result, such injury (or death) is an accident or is effected by accidental means and that where, as here, the accidental injury is the primary or proximate cause of the disability, it is not material that a pre-existing diseased condition contributed thereto. We there said:\n\u201cIt is also clear from our cases that disability or death results solely and exclusively from accidental means although disease plays a part in the disability or death, if the disease was due to the accident. We have also held in several cases that, if an accidental injury is the primary or prox-imate cause of death or disability, it is not material that disease contributed thereto. These eases are cited in the recent case of The Travelers\u2019 Insurance Co. v. Johnston, 204 Art. 307, 162 S. W. 2d 480. In that case we reaffirmed the rule announced in Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, 152 S. W. 995, 44 L. R. A., N. S., 493, where it was held (Headnote 1): \u2018When an accident insurance policy limits liability to \u201cbodily injuries sustained through accidental means resulting directly, independently and exclusively of all other causes of death,\u201d and it appears that death resulted from an aggravation of a latent disease to which the deceased was subject, an instruction is correct to the effect that the defendant insurance company is liable, under the contract, if death resulted when it did on account of the aggravation of the disease from the accidental injury, even though death from the disease might have resulted at a later period, regardless of the injury.\u2019 \u201d\nHere, the proof shows, as indicated, that the rupture or perforation of the ulcer occurred at a time when appellee was in a stooped and strained position, lifting the shaft in question. Dr. Mobley, attending physician, testifying on the presence of an ulcer and the rupture or perforation, said: \u201cI think that definitely that trauma does have an influence. I think that it was a determining factor in this case from the history and from the findings.\u201d\nIn the circumstances, we hold that there was ample evidence to sustain the following finding of the trial court: \u201cThe court finds, therefore, that the disability alleged and for which compensation is sought, occurred through accidental means; that the rupture or perforation occurred as the proximate result of overexertion and strain; that the fact that plaintiff had been afflicted with an ulcer prior to the date of its rupture while a contributing factor to his disability, yet was not the proximate cause of same under the evidence.\u201d\nThe record also reflects that the original findings and judgment of the trial court were filed January 22, 1952, judgment was rendered against appellant February 4, 1952, and the motion for a new trial overruled February 15', 1952. Thereafter, on February 22, 1952, during term time, the court set aside the above judgment and order overruling motion for a new trial and permitted appellee to amend his complaint to ask for a penalty and attorney\u2019s fee, and also permitted the introduction of testimony as to what would be a reasonable attorney\u2019s fee. On the same date, appellant asked that it be permitted to amend its answer and specifically pleaded as a defense, \u00a7 4, above. The court denied this request.\nAppellant argues that the court abused its discretion in allowing appellee to present testimony on the attorney\u2019s fee and that, in any event, the fee was excessive, and further erred in refusing to permit it to amend its answer, as indicated. We do not agree to any of these contentions. Under the above statute, (\u00a7 66-514, Ark. Stats. 1947) in a suit such as this, the insurance company (appellant) \u201cshall be liable to pay the holder of such policy, in addition to the amount of such loss, twelve [12] per cent damages upon the amount of such loss together with all reasonable attorney\u2019s fees for the prosecution and collection of said loss; said attorney\u2019s fee to be taxed by the court where the same is heard on original action, by appeal or otherwise, and to be taxed up as a part of the costs therein and collected as other costs are, or may be by law collected,\u201d etc.\nThe penalty and attorney\u2019s fee were therefore properly assessed, and we do not find the fee excessive.\nThere was no error in refusing to permit appellant to amend its answer for the reason that had appellant specifically pleaded \u00a7 4 of the policy, above, in its original answer, it would not have been a defense under the above authorities.\nAffirmed.",
        "type": "majority",
        "author": "J. Seaborn Holt, Justice."
      }
    ],
    "attorneys": [
      "M. J. Harrison and E. M. Arnold, for appellant.",
      "Gordon d Gordon, for appellee."
    ],
    "corrections": "",
    "head_matter": "Union Life Insurance Company v. Epperson.\n4-9969\n254 S. W. 2d 311\nOpinion delivered January 26, 1953.\nM. J. Harrison and E. M. Arnold, for appellant.\nGordon d Gordon, for appellee."
  },
  "file_name": "0522-01",
  "first_page_order": 546,
  "last_page_order": 550
}