Hessler v. Fed. Cas. Co. of Detroit
| Decision Date | 04 January 1921 |
| Docket Number | No. 23894.,23894. |
| Citation | 190 Ind. 68,129 N.E. 325 |
| Parties | HESSLER v. FEDERAL CASUALTY CO. OF DETROIT, MICH. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Allen County; John W. Eggerman, Judge.
Action by John Hessler, administrator, against the Federal Casualty Company of Detroit, Mich. Judgment for the plaintiff for only the amount tendered by defendant, and plaintiff appeals. Reversed and remanded, with directions to render judgment for plaintiff for the full face of the policy.
Superseding opinion of Appellate Court, 127 N. E. 620.
This was an action to recover on a policy of accident insurance, issued to Joseph F. Parrant, which was in force at the time of said Parrant's death. The complaint was in one paragraph, and in addition to stating facts showing that the insured held a policy of accident insurance issued by the appellee company, and that appellant was entitled to recover thereon for the death of the insured, it alleged that the insured was killed by a robber, who came into the store where he was employed, intending to commit robbery, and after requiring the insured to hold up his hands, under threat of injury, shot and killed the insured, when another employé in the store approached from behind.
The face of the policy of insurance, which was made a part of the complaint, and was also introduced in evidence, is printed on a double page, 11 by 17 inches in size, and recites that for a consideration named the appellee (our italics)-
“does hereby insure the persons described in said application subject to all of the provisions, conditions, and limitations herein contained and ndorsed hereon, *** for loss of life, five hundred dollars (the principal sum of this policy).”
The signatures of the president and secretary of the appellee company are at the bottom of the double page, on the face of the policy, and it is also countersigned on that page. The policy is so prepared and folded that the reverse side contains two pages, each 8 1/2 by 11 inches, on one of which, again folded to make the outside of the folded policy, are a series of 13 conditions, while on the other, the back page, as it is folded, is a copy of the application for the policy, with an express statement at the top that “the following is a copy of the application and a part of the insurance contract,” and below the copied application is the statement that “this policy, subject to its conditions, covers over 2,500 diseases, of which the following are among the most prevalent and common,” followed by a list of 60 diseases, arranged alphabetically, running from “Appendicitis” to “Yellow Fever.” Immediately below is the statement that “it also covers all bodily injuries caused by accidental means, such as *** gunshot wounds, *** injuries inflicted by robbers or highwaymen *** whether such accidents happen at home, in the office, store, shop,” etc.
On the face of the policy on the double page, above the signatures, are a series of clauses, numbered alphabetically from (a) to (k), inclusive, each of which shows some beneficial provision in favor of the insured, the several clauses being each under one of the following headlines, printed in capital letters: “ACCIDENT INDEMNITY-TOTAL LOSS OF TIME,” “ACCIDENT INDEMNITY - SPECIFIC LOSSES,” “FOR LOSS OF LIFE,” “ACCIDENT LOSSES-DOUBLE INDEMNITY,” “BENEFICIARY INSURANCE,” “SPECIAL INDEMNITIES,” “ILLNESS INDEMNITY,” “QUARANTINE INDEMNITY,” “SPECIAL DISEASES,” “TEN PER CENT. INCREASE IN INDEMNITIES,”
and “SIXTY PER CENT. ACCUMULATION.”
Following these, printed in small type, without any further head lines, are three clauses, numbered (l), (m), and (n), respectively, each of which undertakes in some way to limit the liability of the appellee. Clause (l) states a limitation on the liability for disability caused by carbuncles and similar affections; clause (n) provides that proofs of injury, illness, death, or disability must be furnished within 30 days, and stipulates what must be established by such proofs, and imposes certain limitations on the right to sue for the recovery of any claim, and that “any claim not brought in conformity with the provisions of this paragraph shall be forfeited to the company,” with certain stipulations against the forfeiture by the company of its rights of defense; and clause (m) reads as follows (our italics):
“(m) In event of death, disability or loss from injury, except drowning, of which there is no external or visible mark or contusion on the body; or death, disability or loss due partly to injury and partly to disease or bodily infirmity, or death, disability or loss, due wholly or in part to, or resulting directly or indirectly from, injuries intentionally inflicted upon the assured by himself or by any other person, unnecessary exposure to danger, attempt to evade arrest, rioting, strikes, poison, anæsthetic, injuries received by the assured while under the influence of any intoxicant or narcotic, or while violating law or the rules of a corporation, injuries inflicted upon the assured by himself or received by him while insane, injuries received by the assured while in or on or in consequence of being in or on or attempting to get in or out of any aerial machine or conveyance, or disability resulting wholly or in part, directly or indirectly from dementia, insanity, surgical operation for any chronic ailment, or any venereal disease, then, in any such case referred to in this paragraph, the limit of the company's liability shall be 20 per cent. of the amount which would otherwise be payable under this policy.”
The complaint also alleged that proofs of loss were duly furnished and that appellant and the insured complied with all the conditions of the policy on their part.
The appellee filed an answer in two paragraphs: First. An answer of general denial. Second. Setting out clause (m) as above recited, and alleging that the insured was...
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