American Income Insurance Company v. Kindlesparker
| Decision Date | 09 March 1936 |
| Docket Number | 15,181 |
| Citation | 200 N.E. 432,102 Ind.App. 445 |
| Parties | AMERICAN INCOME INSURANCE COMPANY v. KINDLESPARKER |
| Court | Indiana Appellate Court |
Rehearing denied June 4, 1936.
Transfer denied September 30, 1936.
1. APPEAL---Review---Presumptions---Implied Findings---Ultimate Facts Implied From Primary Facts.---Where primary facts found lead to but one conclusion, or are of such character as to necessitate inference of an ultimate fact, the ultimate fact will be treated on appeal as found by the trial court. p 450.
2. APPEAL---Review---Special Finding of Facts---Omission of Issuable Facts.---Although a special finding of facts may omit some issuable facts or may contain some evidentiary facts, if there are enough ultimate facts found to support the judgment it will be sufficient on appeal. p. 450.
3. APPEAL---Review---Special Finding of Facts---Sufficiency to Support Conclusions---Considered as Whole.---In determining whether a special finding of facts is sufficient to support the conclusions of law, the finding must be considered as a whole; not in fragmentary parts. p. 450.
4. APPEAL---Review---Presumptions---As to Sufficiency of Special Finding.---All intendments and presumptions favor the sufficiency of the finding of facts to support the judgment p. 450.
5. INSURANCE---Accident Insurance---Action on Policy---Special Finding---Sufficient Finding of Accidental Injury.---In action on accident policy, special finding that insured "received personal injuries as a result of an accident," held equivalent to finding ultimate fact that insured suffered "bodily injuries caused directly and independently of all other causes by external and accidental means" against which the policy indemnified him. p. 451.
6. INSURANCE---Forfeiture of Policy---Generally---Strict Construction Against Company.---Contracts of insurance may be strictly construed against the company when necessary to prevent a forfeiture of the policy. p. 453.
7. INSURANCE---Forfeiture of Policy---Generally---Construction of Ambiguities.---If a policy contains inconsistent provisions or terms requiring construction, that interpretation should be adopted, if possible, which will sustain rather than forfeit the contract. p. 453.
8. INSURANCE---Notice and Proof of Loss---Waiver of Policy Requirements---Generally.---Requirements in insurance policy as to time and manner of giving notice of an accident are for the benefit of the company and may be waived, sometimes very slight circumstances being sufficient to establish a waiver. p. 453.
9. INSURANCE---Forfeiture of Policy---Waiver of Right---Reten- tion of Premiums.---Receipt and retention of premiums after knowledge of a claimant's disability may amount to a waiver of forfeiture or right to annul the policy. p. 453.
10. INSURANCE---Notice and Proof of Loss---Waiver of Policy Requirements---Evidence---Failure to Supply Forms.---Where accident policy required proof of disability to be furnished within a limited time on blanks to be furnished by the company, failure to supply the blanks within the designated time after notice could be considered in determining whether such requirements were waived as a condition precedent. p. 453.
11. APPEAL---Review---Questions of Fact---Scope of Agent's Authority.---In action on a policy of accident insurance, whether the company's agent acted within his authority in negotiations with the insured for settlement of his claim so as to bind the company, held a fact question for the trial court. p. 454.
12. INSURANCE---Notice and Proof of Loss---Waiver of Policy Requirements---Evidence---Sufficiency.---In action on a policy of accident insurance, finding that the company had actual notice of the disability through written communications, that it failed or refused to supply blank forms for making formal proof of loss, and that it thereafter accepted premium payments, held sufficient to establish a waiver of any further proofs of injuries. p. 454.
13. APPEAL---Review---Finding of Facts---Enlargement of Facts in Appellate Court.---Where the Appellate Court will not generally add to the finding of facts, it may, however, give heed to an undisputed fact appearing in the evidence for the purpose of upholding the judgment. p. 457.
From Wabash Circuit Court; Frank O. Switzer, Judge.
Action by Gale Kindlesparker against American Income Insurance Company on a policy of accident insurance. From a judgment for plaintiff, defendant appealed.
Affirmed.
Stuart A. Coulter, Joseph W. Hutchinson and Owen S. Boling, for appellant.
Walter S. Bent and Russell Wildman, for appellee.
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 motor car on the tracks of the railroad accidentally sprained his back, and the ligaments and tendons thereof, causing inflammation to develop in the left sacro-illiac 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 thirty 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 thirty 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 sixty 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 disability 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 () 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 brings 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,...
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