concurring. I concede that the majority has, as it should, resolved all doubts and inferences against the moving party and has viewed the supporting documents, affidavits, etc. presented with the motion and the response, in concluding that appellee was not entitled to judgment as a matter of law on the record made. Ark. Stat. Ann. § 29-211 (Repl. 1962, Supp. 1977); Russell v. City of Rogers, 236 Ark. 713, 368 S.W. 2d 89; Weathers v. City of Springdale, 239 Ark. 535, 390 S.W. 2d 125; Lee v. Westark Inv. Co., 253 Ark. 267, 485 S.W. 2d 712. While the summary judgment statute provides a salutary remedy, doubtful cases should be resolved against such a judgment.
In viewing the matter, however, it must be remembered that the company has paid the basic coverage under the policy and that this action is for the recovery of double indemnity only. Appellant had the burden of proving coverage. Peoples Protective Life Ins. Co. v. Smith, 257 Ark. 76, 514 S.W. 2d 400. We should make it clear that “coughing, gagging and throwing up” cannot constitute any indication of coverage under the policy. The plain language of the policy describing the risk assumed by the company for the premium paid to it eliminates any possibility of coverage. “Coughing, gagging and throwing up” are not, and never have been taken to be, “a contusion or wound on the exterior of the body.” This record certainly does not show that an injury was revealed by an autopsy. We do not know what the autopsy showed, although the attending physician took it into account in determining the cause of death. The majority opinion fails to point out that the policy language requiring that fatal internal injuries must be revealed by an autopsy governs or that there can be no recovery of double indemnity if internal injuries were not revealed by autopsy.
We should recognize the clear language of the policy and not leave our holding subject to any inference that the factual question here is to be governed by the cases cited in the majority opinion. The clause in this policy is quite different from those considered in the cited cases and the factual situations are distinguishable. In Travelers Ins. Co. v. Johnston, 204 Ark. 307, 162 S.W. 2d 480, the insured was using crutches as a result of Paget’s disease when he was injured by falling while leaving a taxicab. X-rays revealed that the claimant suffered a fractured hip as a result of the fall. The surgeon who repaired the hip testified that it would not be anticipated that the claimant would fall in getting out of a cab merely because he had Paget’s disease and that a fall such as he suffered might have broken his hip if he had not been “afflicted with Paget’s disease.” The question raised there was not even similar to the question here. The insurance was accident insurance, not life insurance. We held only that, in view of the testimony of the surgeon, the insurance company was not entitled to a directed verdict, saying that the instructions given declared the law as favorably to the insurance company as it had the right to ask. There was no requirement that the injury be evidenced by a visible contusion or wound on the exterior of the body or that there be internal injuries revealed by an autopsy.
We also held that the insurance company was not entitled to a directed verdict in Life & Casualty Ins. Co. of Tennessee v. Jones, 230 Ark. 979, 328 S.W. 2d 118, where there was medical testimony that an assault on the insured caused a myocardial infarction, from which he died. The policy clause was quite different from that involved here. There was no requirement that the covered injury be “evidenced by a visible contusion or wound on the exterior of the body except in the case of drowning or internal injuries revealed by an autopsy. ” In order for that case to control here, a period would have to be placed after the words “independently of all other causes” in the first paragraph of the policy copied in the majority opinion. The court did not consider the effect of the words which were included in the policy clause in this case, but not in the clause in the Jones case.
Strangely enough, in Jackson v. Southland Life Ins. Co., 239 Ark. 576, 393 S.W. 2d 233, we affirmed a judgment based upon a jury verdict favorable to the insurance company. The suit was for double indemnity for death of the insured by drowning. Jackson also treats a policy clause that does not require that there be a contusion or wound on the exterior of the body or internal injuries revealed by an autopsy.
The words “and independently of all other causes and which injuries are evidenced by a visible contusion or wound on the exterior of the body, except in case of drowning or internal injuries revealed by an autopsy” [emphasis mine] are a restriction on coverage which was absent in the cases cited in the majority opinion, and they cannot be deleted or ignored in determining the extent of coverage here.
I concur in the holding that appellant did not make the showing necessary for a summary judgment. I point out that “coughing, gagging or throwing up” did not bring the insured within the coverage of the policy.