Elsey v. Fidelity and Casualty Company of New York
| Decision Date | 18 June 1918 |
| Docket Number | 23,484 |
| Citation | 120 N.E. 42,187 Ind. 447 |
| Parties | Elsey v. Fidelity and Casualty Company of New York |
| Court | Indiana Supreme Court |
From Marion Superior Court (21,549); Joseph Collier, Judge.
Action by Erickson Elsey against the Fidelity and Casualty Company of New York. From a judgment for the defendant, the plaintiff appeals. (Transferred from the Appellate Court under § 1394 Burns 1914, Acts 1901 p. 565.)
Reversed.
Remy & Berryhill, for appellant.
Solon J. Carter and D. P. Williams, for appellee.
OPINION
This is an action by appellant upon an accident insurance policy issued by appellee. The policy provided, among other things for an indemnity of $ 12.50 per week "against bodily injury sustained through accidental means, and resulting, directly and exclusively of other causes in immediate, continuous and total disability" and also that "sunstroke * * *, suffered through accidental means * * * shall be deemed a bodily injury within the meaning of the policy." A trial was had by the court without the intervention of a jury, resulting in a finding and judgment for appellee, and from that judgment appellant appeals, assigning as error the action of the court in overruling his motion for new trial.
The controlling question in this appeal is presented by appellant's first and second specifications for a new trial--that the decision of the court is contrary to law and is not sustained by sufficient evidence.
The evidence shows that on July 5, 1911, appellant, while going from the post office in the city of Indianapolis to his place of employment on East Michigan street, was riding upon an open street car and, as the car proceeded in a northeasterly direction along Massachusetts avenue, it left the shaded portion of the street, when appellant, by reason of his position in the car, was subjected to the direct and indirect rays of the sun. It appears that he was about to alight from the car at East Michigan street at a place where there was no shade when he suffered the sunstroke which rendered him unable to perform his daily labor from that time until the bringing of this suit on August 30, 1912. Appellant duly notified the company of his disability and of having suffered a sunstroke while a passenger on a street car. Appellee, however, refused settlement on the ground that sunstroke, when suffered by a person while intentionally performing the ordinary and usual duties of his daily occupation in the ordinary and usual manner, is not a bodily injury suffered through accidental means within the terms of the policy.
A construction of the provision of the policy that "sunstroke * * * suffered through accidental means * * * shall be deemed a bodily injury within the meaning of this policy" will be decisive of the only question of importance in this case.
The contention of appellee is that in the term "accidental means," as therein used, some violence, casualty vis major, is necessarily involved, and that disability or death engendered by exposure to the sun's heat, or other atmospheric influences, cannot properly be said to be accidental, unless the exposure is itself brought about by circumstances which give it the character of an accident. In other words, if the exposure to the heat of the sun was intentionally encountered in the ordinary performance of a person's usual duties of life or occupation, it is not accidental; but, if a person should, by reason of shipwreck or other like occurrence, be left in a position in the heat of the sun and thereby suffered sunstroke, the means would be accidental. This is the view taken in the case of Sinclair v. Maritime, etc., Assurance Co. (1861), 3 Ell. & Ell. 478, and that case is followed to a great extent by the following cases: Dozier v. Fidelity, etc., Co. (1...
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