{
  "id": 8718774,
  "name": "Fidelity Reserve Insurance Company v. English",
  "name_abbreviation": "Fidelity Reserve Insurance v. English",
  "decision_date": "1956-04-09",
  "docket_number": "5-911",
  "first_page": "210",
  "last_page": "213",
  "citations": [
    {
      "type": "official",
      "cite": "226 Ark. 210"
    },
    {
      "type": "parallel",
      "cite": "288 S.W.2d 951"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "220 Ark. 475",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1660108
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/ark/220/0475-01"
      ]
    },
    {
      "cite": "221 Ark. 522",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1656449
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/ark/221/0522-01"
      ]
    },
    {
      "cite": "204 Ark. 307",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1444269
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/ark/204/0307-01"
      ]
    },
    {
      "cite": "44 L. R. A., N. S. 493",
      "category": "reporters:federal",
      "reporter": "L.R.A.N.S.",
      "opinion_index": 0
    },
    {
      "cite": "152 S. W. 995",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "opinion_index": 0
    },
    {
      "cite": "106 Ark. 91",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1345674
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ark/106/0091-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 332,
    "char_count": 4039,
    "ocr_confidence": 0.561,
    "pagerank": {
      "raw": 9.843322108107934e-08,
      "percentile": 0.5338936748822035
    },
    "sha256": "64c4b738c4e85b43898f5c14bc371ad52db7bed660ead86be2710a337275d688",
    "simhash": "1:b2560c76b18812c1",
    "word_count": 660
  },
  "last_updated": "2023-07-14T14:58:54.393419+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Fidelity Reserve Insurance Company v. English."
    ],
    "opinions": [
      {
        "text": "George Rose Smith, J.\nThis is an action upon a sickness and accident policy which provides twelve months of benefits for disability \u201cresulting solely from bodily injuries effected directly and independently of all other causes through accidental means.\u201d In appealing from a judgment for the plaintiff the insurer relies upon several clauses in the policy to support its denial of liability.\nIt is contended that the appellee\u2019s disability did not result solely from accidental means, within the language quoted above. The undisputed facts are that the appel-lee accidentally stepped on a roofing tack, gangrene developed despite medical attention, and the afflicted leg had to he amputated below the knee. The appellant\u2019s argument is based on proof that the appellee, a woman past sixty, suffers from arteriosclerosis, without which the wound would not have become gangrenous. In construing language like that appearing in this policy we have uniformly held that the injury is covered if the accident precipitates the disability, even though the condition would not have occurred without the contributing effect of a preexisting disease. Fidelity & Cas. Co. v. Meyer, 106 Ark. 91, 152 S. W. 995, 44 L. R. A., N. S. 493; The Travelers Ins. Co. v. Johnston, 204 Ark. 307, 162 S. W. 2d 480; Union Life Ins. Co. v. Epperson, 221 Ark. 522, 254 S. W. 2d 311. This view of proximate causation also answers the appellant\u2019s argument that the appellee\u2019s disability is due solely to heart disease, for which the policy does not provide coverage.\nThe appellant relies upon another clause in the contract which allows somewhat smaller benefits for confinement resulting from illness. It is insisted that the claim should have'been asserted under this provision rather than under the paragraph relating to disability-occasioned by accidental injury. The wording of each clause is sufficiently comprehensive to cover the present claim, and, since the policy is to he construed against the insurer, there is no basis for holding that- the insured is compelled to select the least beneficial claim that the contract permits her to assert.\nTwo additional defenses must be rejected for want of proof. The appellant\u2019s reliance upon a clause requiring a disabled insured to he regularly attended by a physician is met by the complete absence of proof that the appellee was not so attended. This general provision, appearing in the latter part of the policy, constitutes an exception to the basic insuring clauses and therefore presents at most an affirmative defense that must be pleaded and proved. Stucker v. Hartford Acc. & Ind. Co., 220 Ark. 475, 248 S. W. 2d 383. Here the defense was pleaded but not proved. Neither is there sufficient proof to establish the contention that the appellee accepted a check in full settlement of her claim.\nThe insurer\u2019s remaining contention, that its liability is limited in any event to specific indemnity for the ap-pellee\u2019s loss of one foot, is in our opinion also an affirmative defense that was waived by the defendant\u2019s failure to plead it. The complaint stated a prima facie cause of action under the disability provisions of the policy. The answer contained a general denial and a counterclaim to recover sums already paid, upon the theory that the plaintiff\u2019s disability was due solely to heart disease. Thus the defendant elected to join issue with the allegations of the complaint, without suggesting in any way that it might be liable under a separate paragraph in the contract for specific indemnity for the loss of the plaintiff\u2019s leg. In these circumstances the company waived the right to rely upon the alternative clause relating to specific indemnities, and the court did not abuse its discretion in refusing to allow this defense to be brought into the ease for the first time in the form of a requested instruction to the jury.\nAffirmed.",
        "type": "majority",
        "author": "George Rose Smith, J."
      }
    ],
    "attorneys": [
      "Dinning & Dinning, for appellant.",
      "A. M. Coates, for appellee."
    ],
    "corrections": "",
    "head_matter": "Fidelity Reserve Insurance Company v. English.\n5-911\n288 S. W. 2d 951\nOpinion delivered April 9, 1956.\nDinning & Dinning, for appellant.\nA. M. Coates, for appellee."
  },
  "file_name": "0210-01",
  "first_page_order": 234,
  "last_page_order": 237
}