ARK.] NEW EMPIRE LIFE v. BOWLING 1051

NEW EMPIRE LIFE INSURANCE COMPANY V.

FRED BOWLING

5-4129 411 S. W. 2d 863 Opinion delivPred February 20, 1967 [Rehearing denied March 27. 1967.] 1. INSURANCE—ACTION ON POLICIES—QUESTIONS FOR JURY.—Contendon that insurer was entitled to a directed verdict underMissouri law because insured's death was not effected by accidental means held without merit where the jury could have concluded that loss of control of vehicle was attributable toaccident rather than intention, and plaintiff's proof showed insured's death to be a violent one.

INSURANCE—ACTIONS ON POLICIES—WHAT LAW GovERNs.—Action on an insuranee policy issued by a Missouri corporation was properly maintainable in Arkansas where insured resided when the policy was issued, which is an adequate basis for application of Arkansas law allowing penalty and attorney's fee. 3. INSURANCE—COSTS & ATTORNEY'S FEES—REVIEW.—Judgrnent modified on cross appeal to include 12% penalty and attorney's fee of $1,500. Appeal from Conway Circuit Court, Wiley IV. Bean. Judge ; modified and affirmc-d.

Gordon & Gordon, for appellant.
George J. (Join:Nano, for appellee,1052 NEW EMPIRE LIFE V. BOWLING [241

GEORGE ROSE SMITH, Justice. This is an actionbrought by the appellee to recover the $5,000 death benefit payable under a policy insuring his son, Jerry Bowling, against injury or death "resulting directlyand independently of all other causes from bodily injury . . . effected solely through accidental means." At the trial the jury's verdict was for the plaintiff in the full amount of the policy. The insurer contends that it was entitled to a directed verdict for the reason that under Missouri law, which the trial court found to becontrolling, the insured's death was not effected by accidental means.

In January, 1964, the elder Bowling, a resident ofArkansas, received by mail an advertisement of an accident policy issued by the appellant, a Missouri corporation. Bowling applied for a policy upon his nineteenyear-old son Jerry, sending the application and premiumto the insurer's principal office in Missouri. The company issued the policy and delivered it by depositing it in the mails in Missouri. In the past we have held that in such circumstances the policy is to be governed by the law of Missouri. State ]Jlutual Fire Ins. Assn. v. Brinkley Stave & Heading Co., 61 Ark. 1, 31 S. W. 157, 29 L. R. A. 712, 54 Am. St. Rep. 191 (1895).
In November, 1964„Terry was living in Arkansas hut was working in Oklahoma. On Noventher 23 he anda companion, Donnie Nixon,.spent most of the day riding around in or near Keota, Oklahoma. They stoppedseveral times to drink beer at taverns. The evidence indicates that at about ten o'clock that night Jerry wasdriving their ear at great speed on a highway near Keota. Donnie was asleep. Jerry lost control of the car, which skidded on and off the highway for about 450 feetbefore plunging into a gravel pit filled with water. Donthe managed to escape, but Jerry was drownod.
Was Jerry's death effected through accidental means? In Missouri the leading case upon this issue was originally that of Caldwell v. Travelers' Ins. Co., 305 Mo. 619, 267 S. W. 907, 39 A. L. R. 56 (1924). There theARK.] NEW EMPIRE LIFE 2 1 . BOWLING 1053

court made a choice between two lines of authority, which it s immarized in these words:

" There are two clearly defined lines of eases on thisquestion. One holds that, where an unusual or unexpected result occurs by reason of the doing by insured of an intentional act, where no mischance, slip, or mishap occurs in doing the act itself, theensuing injury or death is not caused through accidental means; that it must appear that the means used was accidental, and it is not enough that the result may be unusual, unexpected, or unforeseen.

'The other line of cases holds that, where injury or death is the unusual, unexpected, ,■r unforeseen result of an intentional act, such injury or death is by accidental means, even though there is no proof of mishap, slip, or anything out of the ordinary in the act or event which caused such injur y or death.' '

After reviewing the authorities at great length the

court elected in the Caldwell case to adopt the first of the two rules, by wbieb there must be some accidental element in the doing of the intentional act that causes the injury or death. It is accordingly argued in the ca.,Ae at bar that the insurance company is not liable, because Jerry Bowling intentionally drank beer to the point of intoxication and in that condition intentionally drove at a speed estimated by a highway patrolman to have beenbetween 90 and 100 miles an hour. Under those circumstances, counsel say, Bowling's death cannot be regarded as unforeseeable or unexpectable.

We must reject this argument, for either of two reasons. First, Donnie Nixon testified that Jerry was not drunk that night. If the jury accepted that testimony it would follow that Jerr y 's death was the result of his losing control of the ear while driving at an excessive speod. Unquestionably the jury could have concluded
that the loss of control was itself attributable to accident rather than to intention. Secondly, the more1054 NEW EMPIRE LIFE V. BOWLING [241

cent Missouri eases hold that when the plaintiff 's proof shows that the insured's death was violent, as it was inthe ease at bar, there is a prima facie ease for submission to the jury. King v. New Empire Ins. Co., Mo. App,, 364 S. W. 2d 40 (1962) ; Ward v. Penn Mutual Life Ins. Co., Mo. App., 352 S. W. 2d 413 (1961).

Since the judgment must be affirmed even underthe law of Missouri, we do not reach the question whether the more liberal rule of substantive law that prevails in Arkansas ought to govern in a case such as this one. In recent years many principles in the field of conflict of laws have undergone re-examination—a process that is still in progress. Courts are taking a second look at theolder inflexible approach by which in certain fact situations the law of a particular jurisdiction is to be woodenly applied, even though there may be a sound basisin _public policy or_ simply_ in=common=sense=for=preferring the law of some other jurisdiction. We touched upon this point in MeGimty v. Ballentine Produce, 241 Ark. 533, 408 S. W. 2d 891 (1966), but there, as here, we did not find it necessary to take a stand in the matter.
With respect to the narrow issue involved in the case at hand we may appropriately say that there are good reasons for construing a contract of life insurance by the law of tbe state where the insured was livingwhen the policy was issued. See Restatement of Conflict of Laws (2d), 6th Tentative Di aft, ,5 346h ; Zogg

v. Penn Mutual Life Ins. Co., 2d Cir., 276 F. 2d 861 (1960) ; Peterson V. Warren, 31 Wis. 2d 547, 143 N. W. 2d 560 (1966). Should the issue be squarely presented

we shall feel free to review the wisdom of our earlier decisions.

There is a second question to be decided. The plaintiff asked in the court below that he be allowed the penalty and attorney's fee authorized by our statute. Ark.Stat. Ann. 66-3238 (Repl. 1966). The trial court rejected the request, holding that the Missouri statute upon that aspect of the case was controlling and that

the plaintiff had not shown that the insurer's delay wasARK.] 1055

"vexatious," as the law of Missouri requires it to be. This was error. The question is essentially a procedural one, to be governed by the law of the forum. Aetna Gas. & Surety Go. v. Simpson, 22S Ark. 157, 306 

### S. W. 2d 117 (1957). It is true that we said in that ease that "the policy matured in Arkansas and the action is brought in Arkansas." Even though the policy now before usmight be said to have matured in Oklahoma, where Jerry Bowling met his death, the action is properly maintainable in Arkansas, where the plaintiff resides. Weconsider this to be an adequate basis for the application of our statute. The judgment will be modified onthe cross-appeal to include a 12% penalty and an attorney's fee of $1,500.

Modified and affirmed.