Elsey v. Fid. & Cas. Co. of New York

• Decision Date: 25 June 1915
• Docket Number: No. 8604.,8604.
• Citation: Elsey v. Fid. & Cas. Co. of New York, 109 N.E. 413 (Ind. App. 1915)
• Parties: ELSEY v. FIDELITY & CASUALTY CO. OF NEW YORK.
• Court: Indiana Appellate Court

109 N.E. 413

ELSEY

v.FIDELITY & CASUALTY CO. OF NEW YORK.

No. 8604.

Appellate Court of Indiana, Division No. 2.

June 25, 1915.

Appeal from Superior Court, Marion County; Joseph Collier, Judge.

Action by Erickson Elsey against the Fidelity & Casualty Company of New York.From a judgment for defendant, plaintiff appeals.Affirmed.Remy & Berryhill, of Indianapolis, for appellant.S. J. Carter and D. P. Williams, both of Indianapolis, for appellee.

CALDWELL, J.

Appellant brought this action on a life indemnity and accident policy issued by appellee to him July 30, 1910.Trial by the court, decision and judgment for appellee.The questions presented arise under the motion for a new trial; those of chief importance being that the decision is contrary to law and not sustained by sufficient evidence.A determination of these questions necessitates a construction of the policy, the provisions of which material to the injury are as follows:

“The Insuring Clause.

The Fidelity & Casualty Company of New York *** does hereby insure the person *** named in *** against bodily injury sustained during the term of one year *** through accidental means (excluding suicide, sane or insane, or any attempt thereat, sane or insane), and resulting directly,” etc.

“Sunstroke, Freezing, Hydrophobia, Asphyxiation:

Article 6.Any one of the following, namely- sunstroke, freezing, hydrophobia, asphyxiation- suffered through accidental means (excluding suicide, sane or insane, or any attempt thereat, sane or insane), shall be deemed a bodily injury within the meaning of this policy.”

[1] It is not denied that appellant suffered a sunstroke while the policy was in force, and that, by reason thereof, he is entitled to recover in this action, if the circumstances under which he received such injury bring the occurrence within the indemnity provisions of this policy.These circumstances, as testified to by appellant, are substantially as follows: Appellant, a man of 30 years of age, living in Indianapolis, and employed as a bookkeeper, was in good physical condition prior to suffering such sunstroke.On the morning of July 5, 1911, he left his home on West Vermont street to go to his place of employment.As had been his custom for a number of months, he walked several blocks to the post office, got his employer's mail, and thence proceeded to in front of the Denison Hotel, where he waited a short time in the shade of that building for a car.He then took an open summer car, seated himself on the east side, and rode three blocks northeastward along Massachusetts avenue, and there left the car near the place of his employment.As the car approached the crossing where appellant left it, he encountered a very hot zone of air, and thereupon experienced a peculiar sensation, described by him as being of a hot nature, and, as he started to get off the car, he reeled, staggered to the sidewalk, and thence, feeling sick, he went into a drug store for treatment.His trouble was diagnosed as and proved to be sunstroke, from which he was completely disabled for a number of months, and the effects of which remained with him at the time of the trial.He frequently went from the Denison corner to his place of employment by car, and at such times traveled the Massachusetts avenue route.That morning he took the car of his own volition, chose his own seat therein, and did just what he intended to do, and exactly what he had been in the habit of doing for at least a year, except that some mornings he walked the entire distance.There was nothing unusual about the day or the character of the weather for that season of the year; it being very warm, as it ordinarily is in July.The two preceding days also were very warm.Prior to the sunstroke, appellant was in good physical condition.

For the purpose of showing that there was something exceptional in the circumstances preceding and attending the infliction of the sunstroke on appellant, and presumably for the purpose of bringing the incident within the “accidental means” provision of the policy, expert evidence on the subject of atmospheric temperature and humidity was heard.Temperature and humidity from observations taken in the shade of a building were shown as follows: July3d, 8 a. m., 89 degrees;12 m., 97 degrees; mean, 88 degrees; humidity, 7 a. m., 36 per cent.July 4th, 8 a. m., 95 degrees;12 m., 98 degrees; mean, 90 degrees; humidity, 7 a. m., 40 per cent.July 5th, 8 a. m., 80 degrees;12 m., 94 degrees; mean, 85 degrees; humidity, 7 a. m., 69 per cent.

There was also other expert evidence that a person is more likely to suffer a sunstroke when his system is depleted than when he is physically vigorous, and that to pass suddenly from a hot atmosphere into one materially hotter, as well as of a high percentage of humidity, is conducive of sunstroke.There was also other evidence, apparently directed to the same end, that at the place where appellant boarded the car the buildings were tall and close together and afforded considerable protection from both the direct and the indirect rays of the sun, and that northeastward along Massachusetts avenue the buildings diminished somewhat in height and compactness, and that the effect of the sun's ray direct and reflected on the traveler increased proportionally.

In Schmid v. Indiana Travelers' Acc. Ass'n, 42 Ind. App. 483, 85 N. E. 1032, this court considered the question of when and under what circumstances it may be said that a physical injury has been inflicted or suffered through accidental means.In that case Schmid, a resident of Indianapolis, traveled by train to Colorado Springs.Arriving, he walked up about 100 steps to a hotel, carrying a satchel in each hand.On reaching the hotel he suddenly expired by reason of heart paralysis.It was claimed that Schmid's death was due to the change from a low altitude to a high one, and with a consequent ratified atmosphere, together with the physical exertion incident to climbing the steps under the circumstances, and that such death was caused by accidental means.In holdingagainst such claim, this court made an exhaustive examination and analysis of the decisions which to some extent were found to be conflicting.In the course of the opinion this language is used:

“If the result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by acidental means; but if, in the act which precedes the injury, something unforeseen *** or unusual occurs, which produces the injury, then the injury has resulted through accidental means”-citing cases.

Also:

“As to what constitutes an accident, the reported cases are not in accord.But our own decisions, with the weight of the decisions of other courts, hold that, where an injury occurs as the direct result of intentional acts, it is not produced by accidental means.”

Also to the effect (citing a large number of decisions) that the mere fact that the result is unexpected does not make it an accident, within the meaning of an accident insurance policy providing for liability on the death of the insured by accidental means; that the means or cause must be accidental.

It would be needless for us to re-examine the decisions in this case.Appellant went where and when he chose, by the route and in the manner he chose.His movements that morning were in harmony with his custom.If the heat was excessive, such a condition is not unexpected or unusual in July; and, moreover, he voluntarily encountered it as he and many other persons had done theretofore.If the heat was tempered somewhat in places by shade, or if zones of heat in close proximity differed somewhat in intensity, such phenomena are not exceptional.If there was anything unusual in the events of that morning, it consisted in the results rather than the means.See, also, Fidelity, etc., Co. v. Johnson, 72 Miss. 333, 17South. 2, 30 L. R. A. 206, and note; 1 C. J. 425 et seq.

Under authority of the Schmid Case, supra, we cannot escape the conclusion that appellant did not suffer a sunstroke through accidental means.It follows that the questions under consideration must be determined against appellant, unless, from a construction of the policy, it may be said that the limiting phrase contained in said article 6 is not applicable in case of sunstroke.This limiting phrase is as follows:

“Suffered through accidental means (excluding suicide, sane or insane, or any attempt thereat, sane or insane).”

Article 6 is considered in Gallagher v. Fidelity, etc., Co., 163 App. Div. 556, 148 N. Y. Supp. 1016, decided in 1914.There plaintiff, on an exceedingly hot day, was exposed to the sun's rays in the necessary conduct of his business, for an unusual number of hours, and as a result suffered what the jury found to be a sunstroke.The following language used by the court in affirming a judgment in favor of the insured indicates the point decided:

“We think, therefore, that, upon the evidence in this case, the learned trial court would have been justified in leaving to the jury, as the only question of fact in the case, the question whether plaintiff did suffer a sunstroke.The fact that it was also left to the jury to say whether he suffered a sunstroke, ‘within the meaning of article 6 of the policy,’ which had *** been read in their hearing, in view of their verdict, presents no ground of error.”

[2][3] As we interpret that case, the court takes two positions, either of which leads to the final result attained: First, that, although plaintiff intentionally or voluntarily exposed himself to the heat of the sun, he did not intend to produce the result known as sunstroke, and consequently that the sunstroke was suffered through accidental means; second, being the real basis of the decision, that the language of article 6 is vague and indefinite, and must be construed most strongly against the insurer, and, so construed, that the...