Continental Life Insurance Co. v. Malott

• Decision Date: 26 April 1929
• Docket Number: 13,389
• Citation: 166 N.E. 15,89 Ind.App. 263
• Parties: CONTINENTAL LIFE INSURANCE COMPANY v. MALOTT, ADMINISTRATRIX
• Court: Indiana Appellate Court

166 N.E. 15

89 Ind.App. 263

CONTINENTAL LIFE INSURANCE COMPANY v. MALOTT, ADMINISTRATRIX

No. 13,389

Court of Appeals of Indiana

April 26, 1929

From Miami Circuit Court; Hurd J. Hurst, Judge.

Action by Sylvia Malott, administratrix of the estate of Basil Malott, deceased, against the Continental Life Insurance Company. From a judgment for plaintiff, the defendant appealed.

Reversed.

H. K Cuthbertson, Albert H. Cole, Thomas Longfellow and Condo & Batton, for appellant.

Harvey W. Hartley and Edgar P. Kling, for appellee.

OPINION

NICHOLS, J.

Action brought by appellee in one paragraph of complaint, to recover on a policy of accident insurance $ 1,500 for the death of her husband.

The errors relied on for reversal are the court's action in overruling appellant's motion to make the complaint more specific; in overruling appellant's demurrer to the complaint; and in overruling appellant's motion for a new trial.

Appellant says that the same and identical questions are involved in this appeal, as to overruling appellant's motion to make the complaint more specific, and as to overruling appellant's demurrer to the complaint, as in Continental Life Ins. Co. v. Archibald (1928), 87 Ind.App. 597, 162 N.E. 66, and, relying upon the opinion of this court in that case, appellant does not argue the merits of these alleged errors. We, therefore, go with appellant to the alleged error in overruling the motion for a new trial. It is stipulated in the policy, which is made a part of the complaint, that, in consideration of the payment of the annual premium of $ 1 appellant insured Basil Malott now appellee's decedent, and hereinafter called "the insured," for a term of twelve months from the date of the policy, against death or disability resulting directly, independently and exclusively of all other causes against bodily injuries effected solely through external, violent and accidental means and sustained by the insured by the wrecking or disablement of any private horse-drawn vehicle, or motordriven car, in which the insured is riding or driving, or by being accidentally thrown from such vehicle or car.

It is averred in the complaint, so far as we need to set it out, that on December 22, 1926, the insured was riding in and driving an automobile to a filling and service station in the town of Amboy, Indiana, for the purpose of refilling the gasoline tank of his said automobile; and, while the gasoline tank of said automobile was being refilled with gasoline, the said tank exploded and said explosion wrecked and disabled said automobile and, by reason of said explosion and wrecking and disabling of his said automobile, the insured was burned so severely that he died on December 24, 1926, from said injuries so received.

Harry Haley's evidence is undisputed. In narrative form, after some correction, grammatically, it was as follows: "I live in Amboy and run a filling station and blacksmith shop I knew Basil Malott; I recall the accident in December, 1926. At that time Basil drove in there about 8 or 8:10 in the evening; he wanted five gallons of gas and I got up to give it to him, and we were putting the gas in the car and the first thing we knew, flames came right out of the fill plug, it looked like. I thought of the little boy in there and ran around under the hose to get the boy from the opposite side. When I got around there, he had thrown the hose out and grabbed the boy and got out of the cab on the other side, had run out there just south of the station in the driveway and had the boy on the ground rolling him. I ran inside and got a piece of carpet and ran out and told him to let me have him; he got up then and I never saw any fire on him; I saw it on the boy but none on him. I put the carpet over the boy and thought I had the flames out, and then I heard Basil halloo; he was out in the road and there were flames from the bottom of his feet up over his head. I went to him and said 'Lie down'; I took the carpet with me but it wasn't big enough for him; I couldn't do much with it and then I halloeed for help, and first I knew Wendel Lamb was there with a comforter off the bed. I was down working on him and he was the first man I saw. As quick as he came with the comforter, I jumped up, but during the time I took him by the collar and tore his union-alls and sheep-lined jacket off him and tore his waist to one side. When we put that comforter on him, the flames went out. We didn't see any more flames, but we got him up then and commenced pulling the fire off him, and he didn't have...