Hessler v. Federal Casualty Company

• Decision Date: 04 January 1921
• Docket Number: 23,894
• Citation: 129 N.E. 325,190 Ind. 68
• Parties: Hessler, Administrator, v. Federal Casualty Company
• Court: Indiana Supreme Court

129 N.E. 325

190 Ind. 68

Hessler, Administrator, v. Federal Casualty Company

No. 23,894

Supreme Court of Indiana

January 4, 1921

From Allen Circuit Court; John W. Eggeman, Judge.

Action by John Hessler, administrator of the estate of Joseph F Parrant, deceased, against the Federal Casualty Company, of Detroit, Michigan. From a judgment for only the amount tendered by the defendant, the plaintiff appeals.

Reversed.

Edward W. Meyers and Joseph M. Haley, for appellant.

Harry H. Hilgeman and Stephen A. Callahan, for appellee.

OPINION

Ewbank, J.

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 employe 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, eleven by seventeen inches in size, and recites that for a consideration named the appellee "does hereby insure the person described in said application subject to all of the provisions, conditions and limitations herein contained and endorsed hereon * * * for loss of life, Five Hundred Dollars (the principal sum of this policy)." (Our italics.)

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 eight and one-half by eleven inches on one of which, again folded to make the outside of the folded policy, are a series of thirteen 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 twenty-five hundred diseases, of which the following are among the most prevalent and common," followed by a list of sixty 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 * * * gun shot 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 headlines, 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, and clause (n) provides that proofs of injury, illness, death, or disability, must be furnished within thirty 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:

"(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, anaesthetic, 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 twenty per cent of the amount which would otherwise be payable under this policy." (Our italics.)

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 intentionally shot with a pistol or revolver by some unknown person, and thereby received injuries intentionally inflicted upon him by the said unknown person, from which injuries he died, and reciting the facts attending the injury and...