_ 676 LIFE &_ CAS: INS. .CO: 0 I? TENN. - V. BAREFIELD.: [187 LIFE & CASUALTY INSURANCE COMPANY OF TENNESSEE V. BAREFIELD. • 4-3042. . • Opithon delivered June '26, 1933. 1. INSURANCE—ACCIDENT.—Under a policy insuring against injury caused by accident to a motor-driven car, insured was liable where insured suffered the loss of an eye by reason of a stick thrown by the wheel of a passing car, which struck the automobile in which insured was riding and was deflected So as -to strike insured. 2. IN suRAN CE—EXCEPTION IN POLICY—BURDEN OF PROOF.—A provision in an accident policy that, in case of an accident to an automobile, there must be external or visible evidence on the
ARK.] LIFE & CAS. INS. 'CO. OF TEN.N. V.. BAREFIELD. 677 automobile of the collision or-accident to , authorize recovery by insured riding therein is in • he nature of , an exception to the event insured against, and the burden.was On the insurer to prove that a case of aPParent liability fell Within the exception. .• 3. INSURANCE—PROOF OF EXCEPTION IN POLICY.—When-proof is made of-damage apparently within' an insurance . policy, the burden is on the insurer to show that the injury or daniage, was caused by an eVent from the occurrence of which the .insurer had exempted itself . from liability. 4. INSURANCE—ACCIDENT AS CAUSE OF INJURY.—Where a stick thrown by the wheel of a passing car struck the• automobile in which insured was riding and was So deflected that it struels -and injured insured, the causal connection between . the: accident and injury sustained recovery on an i accident policy. 5: INSURANCE—PENALTY AND . ATTORNEY'§' FEE.—Thai insured's' assertion of nonliability under an aecident'pOlicy : Was made in -good • faith is no defense to an 'assessment Of the 'statutory penalty 'and attorney's• fee, whete inSured-l'ectivered the full aniount sued for. Appeal frem Pope Circuit Cotirt; A. B. Priddy, • Judge; affirmed. ... • --. Moreau P. Estes, for appellant. • .John GI Rye and J.13...Ward;for appellee. SMITH, -J. 'This is-a...suit on an -accident policy, and'. from a judgment in favor of the insured' i this appeal:. The complaint alleged that theplaintiff was traveling north in a Ford coupe, in companY with his son, when they met a large sedan traveling in the opposite direction at a high rate : of speed,..-and just as the; cars•were passing the sedan-'raii 'over a stick-and "flipped the said. 'stick in 'the direction of tlie car in which tbe jjlaintiff was riding, striking the said Car at the front Of the left- • hand door. The. ' stick was hurled int&the car'and'Struck the plaintiff in the right eye, -causing said plaintiff to lose the total and irrecoverable sight of said right. eye. That the accident above referred to is covered by the terms of said policy; that said.accident oecurred while said policy was in full force and effect.'-.' ' . . The cause was heard on a stipulation; which recited that "the facts are as stated in- the complaint at :law filed -by the plaintiff, and, if the -facts So stated make ont a case of liability a g ainst. tbe defendant' in-favor -of the plaintiff, the court is authorized to render a judgment
678 LIFE &- CAS.. INS. CO . OF TkNN.- BAREFIELD [187 AgainSt the defendant in' fa:vof of the - plaintiff for- the sum of 0,625, and penalty -of- 12 per' sent. if the court finds plaintiff is - entitled to said penalty froin the facts stipulated herein, .subject to defendant's right to except and*appeal to the Supreme Court of Arkansas for a reversal of such-judgment2'• • • • The Stiptilation inCorporated the relevant portion •of- the policy . sued on, which reads - as follows : The appellant insures, the plaintiff against the result of certain -bodily injuries, including the loss of an eye, "if the insured shall . [suffer such injuries] by the collision of or by any accident to any railroad paSsenger • car, passenger steams*, imblicl omnibus, street, railway car, taxicab or automobile, stage or . tus,. which is being driven or op-erated- at the time .by.a .person regularly employed for that purpose, and in which such insured is traveling as a 'fare-tiayirig iiassenker or on w' Mai he is 'lawfully riding on a pass ; or by the collision of or by any adcident to nnY private horse-drawn vehiele tir 'Private tnOtor-driVen.car in which insnred iS . Oiodriving ; or, shall . [suffer them] by any aceident to any.passengerelevator in which insured is. riding as a passenger ;. provided that in all cases referred to . in this paragraph there shall be some external or -visible evidence on said vehicle of the collision or accident.!': . , For the reversal:of the, judgment-of the court below, it is insisted- that, under . the stipulation. as to the facts, there is no: evidence, that there was any "external or visible evidence on• said vehicle of a collision or accident,"•as required by the policy, and also that no causal connection Was shown between the loss of the eye and the accident to the car. - It appears, however, that • there was an accident to the car. It was an accident, within the meaning of the policy, for the flying stick -0 strike the car, and in strik ing . the car the stick was deflected so as to strike the - plaintiff and cause the loss of his eye, and, if it'be said that there was left no ekternal or visible evidence on the -car of the accident; this provision waS .in the nature of an exception to the event insured against, to-wit, t-hat
ARK.] LIFE & CAS. INS. CO . OF TENN. V . BAREFIELD. 679- the insured, while riding in one car, shOuld be accidentally injured- through the -operation of another. Plaintiff having made proof that • he was so injured, the . burden was upon the insurer to show that the case fell within an exception- to the contract by Which the. insurer had- indemnified the insured . against such an injury. The rule appears to be- that, when proof -is niade of damage apparently within -of insurance, the thirden is on . the insurer • to"-show that the iiij -urY or damage was caused -by an event • from tile oCcufreilee of which the insured had exempted itself from liability. The rule is stated tit § 599 of the chapter' on Insurance in 14 R. C. L., page 1437, as folloWs : "Where preof is made of a loss apparently within 'a - policy-, 'the burden is 'on the insurer 16' prOve that the loss arose frem a Cause for which it is not liable: AcCordingly, While the plaintiff in an action on an -accident policy 'must proVe that the. death was caused by aceidental mbafis, yet -where prima facie evidence of that fact haS been adduced, the defendant must show that the death of the insnred resulted from an excepted cause." The following, ameng other decisions of this court, .are to the same effect: Grand Lodge, 4. 0...U. W., v. Banister, 80 Ark. 190;96 S. W. 742 ; Continental Casualty Co. v. Todd, 82 Ark. 214, 1 01 . S. W. 268; 'Etna Life Ins. Co. v. Taylor, 128 Ark. , 155, 1_93. S. W . . 540 ;, Harrison v. Interstate Busineis- Men"S Ace.' "A.SkU, 138 Ark. 163, 202 S: W. 34; Mutual Life Ins. CO.-of Neiv York v: RaymOnd, 176 Ark.- 879, 4 S. W. (2d) 536:- . We are of the opinion • lso . : that there was -such causal connection, under the provisions of the Tolicy, between the accident and the injury -as to sustain --the. judgment of the court. The.flipping of the . stick was clearly an accident. The stick.Was throWii . against the Car,. and, after striking the car, was so deflected that it struck the plaintiff and injured' him'. -That the. stick did strike the car, and- was deflected in 'so 'doing,'-is' a' fact whieli the . parties have stipulated to be' true, and thiS stipulation, in our opinion, distinguishes the instant case -from that of Life tE-Casualty Ins. Co. of TennesSee. v.• Whitehurst,
148 So. 162, decided by . the:Court of Appeals of Alabama, which was cited by appellant and relied-upon as announcing .the legal principle which should control our decision. It is finally insisted that the trial court erred in assessing a penalty and attorney's fee in this case, for the reason that . the insurer had defended in good faith under the belief that it was not liable. We have held,. however, to the contrary. The plaintiff recovered the full amount sued for ; indeed, there was a stipulation declaring the extent of the liability if the insurer was liable at all, and the fact that the assertion of nonliability was made in good faith is no valid defense to the assessment of a penalty and the allowance of an attorney 's fee, as pre-vided in§ 6155, Crawford & Moses' Digest. There was a review of what we regarded as the controlling authorities upon this subject in the recent case of Missouri State Life Ins. Co. v. rOrea, 185 Ark..155, 46 S. W. (2d) 638, and we do not again review them. . As we construe the contract:sued on, the judgment is . correct, and it is therefore affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.