#### Pinnacle Old Line Insurance Co. v. Ellis.

5-1419

307 S. W. 2d 882

Opinion delivered December 23, 1957.

Talley ■& Owen and William L. Blair, for appellant.

G. P. Houston, for appellee.

George Eose Smith, J.

This is an action upon a bealtb and accident insurance policy issued by the appellant to Y. E. Ellis and three members of his family. While the policy was in force Mrs. Ellis was confined to a hospital and underwent a combined hysterectomy and appendectomy. Upon the insurer’s refusal to pay the claim the Ellises sued for hospital and medical expenses amounting to $520. Judgment in their favor was entered upon a jury verdict for $333.96. The defendant later asked the court to reduce the judgment to $212, which was asserted to be the insurer’s maximum liability under the policy for the several items enumerated in the complaint. This appeal is from the original judgment and from the court’s refusal to grant the requested reduction.

*459On the basic issue of liability tbe appellant contends that tbe claim is not within tbe coverage of tbe policy. Tbe defendant offered in evidence tbe original application for tbe insurance, which shows that Mrs. Ellis stated that she suffered from “female trouble” and waived any liability on tbe part of tbe insurer for that ailment. It is argued that according to tbe proof, the hysterectomy was tbe sole cause for Mrs. Ellis’s hospitalization and falls within the waiver of coverage contained in the application.

On this issue tbe appellant’s position is fatally defective in two particulars. First, tbe contract expressly covers tbe operation in question and further provides: “This policy, including tbe endorsements and tbe attached papers, if any, constitute the entire contract of insurance. ’ ’ To prove tbe affirmative defense of waiver it was necessary for tbe insurer to show that a copy of tbe application was attached to tbe policy and become part of tbe contract. There is no clear-cut proof in tbe record that tbe application was in fact incorporated in tbe policy. Tbe insurer, without requesting a directed verdict, obtained an instruction by which this question of fact was submitted to tbe jury. In these circumstances it cannot now be contended that tbe verdict on this issue was erroneous. Berman v. Shelby, 93 Ark. 472, 125 S. W. 124; Western Union Tel. Co. v. Cowardin, 113 Ark. 160, 168 S. W. 1133. Secondly, tbe notice of appeal was filed on January 22 and refers to tbe original judgment as having been rendered on December 22.. Tbe judgment itself is dated December 19 and does not show when it was entered of record. Even if tbe judgment was entered on December 22, as the notice of appeal indicates, tbe notice was not filed until tbe thirty-first day thereafter, which is too late for this jurisdictional step to be taken. Ark. Stats. 1947, § 27-2106.1; General Box Co. v. Scurlock, 223 Ark. 967, 271 S. W. 2d 40. It should be observed that tbe thirtieth day did not fall on Sunday, as was true in White v. Avery, 226 Ark. 951, 295 S. W. 2d 364.

Tbe trial court was correct in denying tbe motion to reduce tbe amount of tbe judgment. Tbe policy limi*460tations relied upon are not set forth, in the main insuring clause, which provides in general terms for protection against loss caused by hospital, surgical, and other specified expenses. The restrictions upon the insurer’s liability are contained in a subsequent schedule and constitute exceptions that must be pleaded affirmatively. Stucker v. Hartford Acc. & Ind. Co., 220 Ark. 475, 248 S. W. 2d 383. These defenses were not mentioned in any way until after the verdict. As we said in a similar situation in Greenwich Ins. Co. v. State, 74 Ark. 72, 84 S. W. 1025: “If the appellant is right in its contention, then it had a defense, pro tanto, to the suit, and a failure to plead it waived it. This court has frequently decided that when a battery is masked in the trial court, it cannot be opened in this court. ’ ’

Affirmed