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 under 

Missouri 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 to 

accident 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 action 

brought by the appellee to recover the $5,000 death benefit payable under a policy insuring his son, Jerry 

Bowling, against injury or death "resulting directly 

and 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 be 

controlling, the insured's death was not effected by accidental means. 

In January, 1964, the elder Bowling, a resident of 

Arkansas, 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 premium 

to 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 and 

a companion, Donnie Nixon,.spent most of the day riding around in or near Keota, Oklahoma. They stopped 

several times to drink beer at taverns. The evidence indicates that at about ten o'clock that night Jerry was 

driving 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 feet 

before 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 the
ARK.]	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 this 

question. 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, the 

ensuing 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 been 

between 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 Jerry '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 more
1054	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 in 

the 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 under 

the 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 the 

older 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 basis 

in _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 living 

when 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 was
ARK.]	

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 us 

might be said to have matured in Oklahoma, where Jerry Bowling met his death, the action is properly maintainable in Arkansas, where the plaintiff resides. We 

consider this to be an adequate basis for the application of our statute. The judgment will be modified on 

the cross-appeal to include a 12% penalty and an attorney's fee of $1,500. 

Modified and affirmed.