Hoosier Cas. Co. v. Royster

• Decision Date: 27 October 1925
• Docket Number: No. 25052.,25052.
• Citation: 149 N.E. 164,196 Ind. 629
• Parties: HOOSIER CASUALTY CO. v. ROYSTER.
• Court: Indiana Supreme Court

196 Ind. 629

149 N.E. 164

HOOSIER CASUALTY CO.

v.ROYSTER.

No. 25052.

Supreme Court of Indiana.

Oct. 27, 1925.

Appeal from Circuit Court, Clinton County; Earl Stroup, Judge.

Action by Lydia Royster against the Hoosier Casualty Company. Judgment for plaintiff, and defendant appeals. Transferred from Appellate Court under Burns' Ann. St. 1914, § 1394. Affirmed.

Superseding opinion of Appellate Court in 142 N. E. 18.

H. C. Sheridan, of Frankfort, and W. H. Latta, of Indianapolis, for appellant.

Thomas M. Ryan, of Frankfort, for appellee.

WILLOUGHBY, C. J.

The appellee was named as a beneficiary in an accident policy issued by appellant to one Sigel A. Royster, who was the husband of appellee. Appellee brought action on the policy in the Clinton circuit court, claiming that liability had accrued to her on account of the death of said insured. The liability of the appellant is predicated upon the theory of accidental death occurring through external, violent, and accidental means.

The trial was by the court without the intervention of a jury, and resulted in a finding in favor of appellee in the sum of $1,480.50. After overruling a motion for a new trial, the court rendered judgment on the finding in the sum of $1,488.50, and from such judgment this appeal is taken. The only question presented is the sufficiency of the evidence to sustain the finding of the court.

The policy in suit insured against injury resulting “necessarily, directly, and independently of all other causes from bodily injuries, effected through external, violent, and accidental means.” The appellant contends that the injury was not accidental within the meaning of the policy. Appellee contends that the injury causing death was accidental within the meaning of this policy. This is the only question sought to be presented on this appeal.

The complaint alleges the following facts, which are fully sustained by the evidence:

“That the death of said Sigel A. Royster was due to external, violent, and accidental means, in this, that the said Sigel A. Royster was afflicted with hemorrhoids, and in treating such hemorrhoids he used a tube for the introduction of medicine in the lower bowels, and on the 17th day of November, 1921, in so introducing said medicine in said bowels, he accidentally and without intention on his part punctured said lower bowels with said tube or instrument so used for the purpose aforesaid, from which said injury he sickened and lingered until the 21st day of November, 1921, at which time he died from the results of said injury so suffered as aforesaid; that there were visible marks of said injury in this, that the hole so punctured in said lower bowel was about one-fourth inch in diameter; that there were external marks of said injury in this, that in a short time after said injury the lower part of the abdomen became swollen and hardened; and that the death of said Sigel A. Royster resulted as a proximate result of said injury, and from no other cause whatsoever.”

It also appears from the evidence that before the death an operation was performed which showed that the injury in the lower bowel was located about 10 inches above the opening, and that the wall of the bowel about the injured place was in a good healthy condition; no indication whatever of any diseased condition of the bowel at or near the puncture. The wound was a fresh one. The evidence also shows that the hemorrhoids extended about two inches up in the bowels.

The tube used by the deceased in medicating his hemorrhoids is described, and a surgeon testifying as a witness said:

“Taking such a tube, and pushing it steadily against the walls of the intestines or lower bowels, where this puncture was found, after a certain amount of pressure it would produce pain. It would produce pain to the extent that, if one were manipulating the instrument himself, he would surely cease making pressure. In my opinion I don't think a person would be able to withstand it long enough to puncture the bowel by steady pressure, manipulating the instrument himself. If, in using a tube of that character, a person would, in inserting the tube, get it against the fold of the bowel or some other obstruction, and the end of the tube then would slip and suddenly move more rapidly against the wall of the intestine, and strike it with force, in my opinion that world cause a puncture such as was found in the bowel, or, if a person had taken a sitting posture, and suddenly and accidentally put more weight on the tube than was intended, causing it to enter suddenly and with force, it could, in my opinion, cause the wound that was found in the bowel.”

A fair consideration of the evidence in this case would indicate that, when the assured used this instrument which he had used before to medicate his hemorrhoids, something accidental and unexpected did occur; that was that the instrument was, on account of some unexpected occurrence, while he was using it, unintentionally inserted beyond the place where the medicine was intended to be used, and the injury thus produced.

In Schmid v. Ind. Travelers' Acc. Association, 42 Ind. App. 483, 85 N. E. 1032, the court said:

“A death may in a sense be ‘an accident’ or ‘accidental,’ that is, a death or injury may be a result...