American Income Ins. Co. v. Kindlesparker

• Decision Date: 09 March 1936
• Docket Number: No. 15181.,15181.
• Citation: 200 N.E. 432,102 Ind.App. 445
• Parties: AMERICAN INCOME INS. CO. v. KINDLESPARKER.
• Court: Indiana Appellate Court

102 Ind.App. 445

200 N.E. 432

AMERICAN INCOME INS. CO.

v.KINDLESPARKER.

No. 15181.

Appellate Court of Indiana, in Banc.

March 9, 1936.

Appeal from Wabash Circuit Court; Frank O. Sevitzer, Judge.

Suit by Gale Kindlesparker against the American Income Insurance Company. Judgment for plaintiff, and defendant appeals.

Affirmed.Stuart A. Coulter, of Indianapolis, and Joseph W. Hutchinson, Asst. Atty. Gen., for appellant.

Russell Wildman, of Peru, and Walter S. Bent, of Wabash, for appellee.

WOOD, Judge.

Appellee brought suit against the appellant to recover money alleged to be due and owing under an indemnity disability policy issued to him by appellant.

The complaint and supplemental complaint alleged in substance that on September 28, 1931, appellant issued a policy of insurance to appellee under the terms of which appellant agreed upon the payment of certain premiums to pay to appellee the sum of $100 per month so long as appellee should be disabled and unable to attend to any and every kind of duty pertaining to his occupation by reason of bodily injuries caused directly and independently of all other causes by external and accidental means; that on October 15, 1931, while said policy was in full force, appellee, who was a section foreman on the Wabash Railroad, while engaged in lifting a motorcar on the tracks of the railroad, accidentally sprained his back and the ligaments and tendons thereof, causing inflammation to develop in the left sacroiliac region of his back, disabling him; that he had performed all the terms and conditions of said policy to be performed. The policy was made an exhibit to the complaint.

To this complaint the appellant filed an answer in four paragraphs. The first was a general denial. The second alleged that the appellee failed to furnish appellant with a written report from his attending physician every 30 days stating fully the condition of appellee and the probable duration of his disability as required in the policy. The third alleged that appellee had not made proof of his disability every 30 days as required in the policy. The fourth alleged that the policy provided that no action should be brought to recover on it prior to the expiration of 60 days after proof of loss had been filed, and that appellee had never made any proof of loss as required in the policy. To the second, third, and fourth paragraphs of answer, appellee filed a reply alleging somewhat in detail a history of the various transactions had between appellant and appellee subsequent to the date when the alleged accident occurred.

The cause was tried to the court without a jury. On request the court found the facts specially, stated its conclusions of law thereon, and, after overruling appellant's motion for a new trial, rendered judgment for appellee in harmony with the conclusions of law.

Appellant, appealing, assigns as error for reversal that the court erred in its first and second conclusions of law and in overruling appellant's motion for a new trial. The only causes for a new trial discussed in appellant's brief are that the decision of the court is not sustained by sufficient evidence and is contrary to law.

The appellant contends that the special finding of facts is not sufficient to sustain the conclusions of law and the judgment based thereon, for the reason that there is no finding of fact “that the insured was injured and disabled by the means against which the policy insured.”

Among other things, the policy in suit insured the appellee “against the effects of bodily injuries, caused directly and independently of all other causes by external and accidental means, *** which bodily injuries or their effects shall not be caused wholly or in part, directly or indirectly by any disease, defect or infirmity, and which shall from the date of the accident result in continuous disability,” and, “if such injury shall not result in any of the losses enumerated in Part 1, (with which we are not concerned) but shall directly, immediately, wholly and continuously disable and prevent the insured from attending to his occupation, and he shall be regularly attended by a legally qualified physician, the company will pay him for a period not exceeding thirty six consecutive months, indemnity at the rate per month of one hundred and no/100 Dollars.” By its special finding No. 4, the court found as a fact “that on October 15, 1931, plaintiff, while in the employ of the Wabash Railroad as a section foreman, received personal injuries as a result of an accident, while engaged in lifting a handcar upon the tracks of said railroad whereby his back and pelvic region became disabled and have ever since been disabled, and he has been wholly unable to perform any work of any kind whatsoever and has been continuously under the care of a physician.”

The appellant contends with much earnestness that the facts as found by the court in finding No. 4 bring this case within the rule announced in those cases which hold that an injury resulting from voluntary physical exertion or from intentional acts on the part of the insured are not accidental within the meaning of a contract like the one under consideration, and, if the result was such as follows from ordinary means voluntarily employed, not in an unusual or unexpected way, it cannot be called a result effected by accidental means, and that the statement in the finding that appellee “received personal injuries as a result of an accident” is a conclusion not warranted by any facts found and must be ignored in determining the sufficiency of the facts to sustain the conclusions of law, citing in support thereof Husbands v. Indiana Travelers' Accident Ass'n (1921) 194 Ind. 586, 133 N.E. 130, 133, 35 A.L.R. 1184.

We do not think that the case cited supports appellant's contention or that the language employed therein by the court is subject to the construction which the appellant would have us place upon it. In that case the Supreme Court said: “The recital in the special finding of the conclusions that the wrenching and straining of his body in shaking the furnace was ‘accidental,’ and that the rupture of the blood vessel was caused by ‘accidental means,’ must be disregarded, except so far, if at all, as they are supported by the facts found.” Which expression appellant says, when applied to the language used in finding No. 4 in the instant case, withdraws it from the realm of a finding of fact and necessarily classifies it as a conclusion. The meaning which we think the court intended to convey by this language was that to say the wrenching and straining of the body in shaking the furnace was accidental was a conclusion, and the further statement in the finding that the rupture of the blood vessel was caused by “accidental means,” being predicated upon this conclusion, must of necessity be disregarded, except in so far as it was supported by the facts found.

[1][2][3][4] Where the primary facts found lead to but one conclusion, or where such facts are of such character that they necessitate the inference of an ultimate fact, such ultimate fact will be treated as found by the trial court and sufficient on appeal. In such instances the facts are sufficiently found, though there may be a technical defect of statement in the finding. If the finding of facts contains enough ultimate facts to support the judgment, it will be sufficient, though it may not find all the issuable facts and may contain primary or evidentiary facts. Furthermore, in determining whether conclusions of law are supported by a special finding of facts, it is necessary to bear in mind the rule that “‘a special finding, like a special verdict, a series of instructions, or the like, must be considered as a whole, and it cannot be dissected into fragmentary parts and successfully assailed in detail. One part may be considered in connection with other connected parts, or parts referring to the same transaction, and if, taken as a whole, the finding legitimately supports the judgment, it will be upheld.’ And in determining whether the judgment is thus supported, all intendments and presumptions are in favor of the finding rather than against it.” National Surety Co. v. State (1913) 181 Ind. 54, 103 N.E. 105, 107;Mount v. Board of Com'rs (1907) 168 Ind. 661, 80 N.E. 629, 14 L.R.A.(N.S.) 483;Harris v. Rigg's (1916) 63 Ind.App. 201, 112 N.E. 36.

[5] Our Supreme Court and this court have frequently defined the word “accident.” In the case of General Printing Corporation v. Umbach (1935) 100 Ind. App. 285, 195 N.E. 281, 284, in discussing the meaning of the word “accident” as used in the “Workmen's Compensation Law,” this court said: “‘Accident,’ as the word is used in this act, has been repeatedly defined by this court as an unlooked for mishap, an untoward event, which is not expected or designed. General American Tank Car Corporation v. Weirick (1921) 77 Ind.App. 242, 133 N.E. 391, 392;Brewer v. Veedersburg Paver Co. (1931) 92 Ind.App. 547, 177 N.E. 74, 75. In the case of General American Tank Car Corporation v. Weirick, supra, this court cited and quoted with approval from the case of Western Commercial Travelers' Ass'n v. Smith (C.C.A.1898) 85 F. 401, 40 L.R. A. 653, where the phrase ‘accidental means' was discussed and defined, in the following language: ‘An effect which is not the natural or probable consequence of the means which produced it, an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of those means, an effect which the actor did not intend to produce and which he cannot be charged with the design of producing under the maxim to which we have adverted, is produced by accidental means. It is produced by means which were neither designed nor calculated to cause it. Such an effect is not the result of design, cannot be reasonably anticipated, is unexpected, and is produced by an unusual combination of fortuitous circumstances; in other words, it is...