concurring. I concur in the majority opinion. The law, as cited by the majority, is very clear that if there is doubt or uncertainty as to the meaning of an insurance policy and it is fairly susceptible of two interpretations, one favorable to the insured and the other favorable to the insurer, the former will be adopted. It is also very clear to me that the phrases “incurred as a result” and “arising as a result” are fairly susceptible to an interpretation favorable to the insured.
The case of State Farm Mutual Automobile Ins. Co. v. LaSage, 262 Ark. 631, 559 S.W.2d 702 (1978), cited in the majority opinion, clearly holds that the phrase “arising out of’ does not mean “proximately caused by” but means “causally connected with” or a “but for” connection. I agree, however, as the majority holds, that the addition of the word “result” in the policy in this case means that more than a “but for” causal connection must be shown. Moreover, in my view, under a reasonable and common sense meaning of the policy provision “arising as a result of being legally intoxicated,” the evidence in this case simply does not bring the appellant’s injuries within that exclusion. Although the appellee argues, and the trial judge agreed, that if the appellant had not been drunk, the wreck — and consequently the appellant’s injuries — would not have occurred, that is simply not true except in the most ethereal sense. If one holds that “the fatal trespass done by Eve was the cause of all our woe,” then one might believe that the appellant’s intoxication caused his injuries; however, I do not think that is the causal relationship involved in the policy exclusion in this case.
The appellee says that “under contract law, the parties are free to select their own agreement” and could have provided for “no coverage on even numbered days of the week.” Public policy considerations aside, the problem with appellee’s argument is that its insurance policy simply did not provide that “an insured who is injured while intoxicated is not covered.” At the very least, the policy is fairly susceptible to an interpretation that requires a causal relation as lay people would view it between the intoxication and the injuries. The appellant is entitled to that interpretation, and viewed in that light, the evidence in this case does not support the trial judge’s finding that the appellant would not have been injured had he not been intoxicated.
I would also add that I cannot attach any importance to the statement, referred to in the dissenting opinion, in which McDon-ner said the appellant had “yanked” the steering wheel at the time of the accident. McDonner did not testify, and the appellant (although he admitted that McDonner made the statement referred to) testified that he had no recollection of “yanking” the steering wheel. The trial judge’s opinion made no reference to any testimony about “yanking” the steering wheel and the appellee’s brief makes no argument that relies on such testimony. I do not think this out-of-court statement by McDonner is sufficient to support even an implied finding of a causal relationship between appellant’s intoxication and his injuries.
This case was filed in chancery court as a declaratory judgment action. I concur in reversing the finding of no liability made by the chancellor and agree that the case should be remanded for a determination of the amount of the recovery to which the appellant is entitled.