Husbands v. Indiana Travelers' Acc. Ass'n

• Decision Date: 21 April 1921
• Docket Number: No. 10783.,10783.
• Parties: HUSBANDS v. INDIANA TRAVELERS' ACC. ASS'N.
• Court: Indiana Appellate Court

130 N.E. 874

HUSBANDS

v.INDIANA TRAVELERS' ACC. ASS'N.

No. 10783.^*

Appellate Court of Indiana, Division No. 2.

April 21, 1921.

Appeal from Superior Court, Marion County; W. W. Thornton, Judge.

Action by Laura J. Husbands against the Indiana Travelers' Accident Association. Judgment for defendant, and plaintiff appeals. Reversed and rendered.

Charles A. Dryer, of Indianapolis, for appellant.

Wm. S. McMaster, Elmer E. Stevenson, and Thomas D. Stevenson, all of Indianapolis, for appellee.

NICHOLS, J.

This is an action by appellant on an accident certificate or policy of insurance dated March 15, 1911, providing for certain indemnities for injuries, if and when received by William M. Husbands, the insured, or in the case of his death a certain indemnity to be paid to appellant, his wife, the beneficiary named in the policy, subject to the provisions of the constitution and by-laws of the appellee in force at the time of the happening of such injury.

The contract of insurance, which is made a part of the complaint, provided that if the insured was a member in good standing at the time of receiving an injury through external, violent, and accidental means, independently of all other causes, resulting in his death within 26 weeks thereafter, the appellee would pay the beneficiary an indemnity of $5,000.

The complaint avers that the insured received an injury or injuries while shaking, or attempting to shake, down the ashes in his furnace in his residence in Indianapolis, Ind., on October 25, 1918, in doing which he exerted himself with such force and violence as to cause ashes and fumes to arise from the furnace, filling his mouth and nose and lungs therewith, and such exertion caused the rupture of a blood vessel or artery in his right lung, which resulted in his immediate death, independently of all other causes. Appellee denied all liability, and refused payment of the indemnity sued for, solely because it contended that the death of the insured did not result from an accident under the terms of the contract. The cause was tried by the court, and special finding of facts and conclusions of law were filed and made by it. The substance of these findings, so far as here involved, is: That appellee did, on March 15, 1911, enter into a written contract or certificate of insurance with William M. Husbands, insuring him against injury or death by accident, whereby appellant, his wife, who was designated as the beneficiary by him in said contract or certificate of insurance, should be entitled to $5,000 in case of his death, subject to all terms, provisions, and contingencies of the conditions of the constitution and by-laws of said association, which were made a part of the special finding. That the constitution and by-laws of the defendant in force when the said certificate of membership was issued provided, whenever a member in good standing should, through external, violent, and accidental means, receive a bodily injury, which should, independently of all other causes, result in death within 26 weeks from the time of such accident, the board of directors within 30 days should order an assessment of $2 to be made upon each member of the association, and the amount realized from such assessment, not exceeding $5,000, should be paid to the beneficiary named in the certificate of such deceased member, but if, when a death occurred, the sum of money in the treasury of the association not otherwise appropriated should exceed the sum of $5,500, such loss should be paid out of the treasury, not to exceed $5,000. That appellant at the time of the commencement of this action, and at the time of the death of William M. Husbands, was and still is his widow, and was and is sole beneficiary in said contract or certificate of insurance, and is the owner thereof. On October 25, 1918, about 7 o'clock in the morning, the said William M. Husbands, went to the furnace room or basement of his residence in Indianapolis, for the purpose of shaking down the ashes in the furnace therein and replenishing it with coal. The shaker of such furnace when in operation had a forward and backward movement from and toward the furnace, and required much physical strength and force to move it back and forth in shaking down the ashes. That immediately on arriving at the furnace said William M. Husbands by means of said shakes shook down the ashes, using more force and strength than was necessary to shake down an ordinary furnace of the kind it was when in good working order. That the shaking of said furnace was with such force or violence as to cause the ashes thereof to arise therefrom and fill that part of the furnace room where it was located, some of the ashes settling on said William Husbands' coat and vest. The said furnace was a hard furnace to operate, and required violent force to do so. That while shaking down the ashes said William M. Husbands abandoned the furnace, and immediately left the furnace room and ascended the stairway to the kitchen, and on some of the steps of the stairway some drops of blood fell from his mouth or nostrils. That when he reached the kitchen, blood was gushing rapidly and profusely in large quantities from his mouth, nose, throat, and lungs, his eyes were bulging, and, after being helped down on the floor, he died in said kitchen within 15 minutes after he left the furnace room. The blood which flowed from the deceased's lung, as aforesaid, covered his nose, face, hands, and clothing, and blanched and made his face white and palid, all of which was visible to all persons who saw his body. That the wrenching and straining of deceased's body by the violent exertion in shaking the furnace was accidental and unintentional on his part, and was unforeseen and unexpected by him; and said hemorrhage was from the rupture of a blood vessel or artery in his lung, and was caused by said external, violent, and accidental means, and which did, independently of all other causes, result in his direct and immediate death. That at the time of the death of deceased, and for some time prior thereto, his right lung was in a deceased condition, and the tissue thereof was unhealthy and degenerated, due to the ravages of tuberculosis thereof, and the walls of some of the blood vessels of said right lung were weakened and degenerated by reason of the ravages of said tuberculosis. That said William M. Husbands was a traveling salesman, and usually out of the city of Indianapolis on his business during part of Monday and all of Tuesday, Wednesday, Thursday, and Friday, usually being at home on Saturday and Sunday and Monday morning. That prior to the commencement of the action herein appellee had denied that it was liable to appellant for the death of the deceased under the terms of such certificate, constitution, and by-laws. That if the law be with appellant, she is entitled to recover of and from the appellee the sum of $5,000, with 6 per cent. interest from February 20, 1919.

On these findings, the court stated its conclusions of law in favor of appellee, and, after overruling appellant's motion for a new trial, rendered judgment for appellee, from which this appeal. The errors assigned are the court's conclusions of law and its action in overruling the motion for a new trial.

[1][2][3][4] Appellee contends that the insured's injury from which he died was the result of two facts conjointly constituting appellee's cause of action, and that appellee must prove both facts in order to recover, citing Terre Haute, etc., R. R. Co. v. McCorkle, 140 Ind. 613, 40 N. E. 62, and Southern R. Co. v. Jones, 33 Ind. App. 333, 71 N. E. 275, to sustain its contention. In the McCorkle Case there were two defects in a car, which together caused the injury complained of, and of course conjointly constituted the cause of action, and the court held that the complaint proceeded on the theory that neither defect alone would have caused the injury. We do not so understand the theory of the complaint in this case, but rather that either of the two facts, separately or both combined, might have produced the injury, and the proof of either, so far as this question is concerned, justified a recovery. It has been repeatedly held that a complaint in one paragraph may properly charge two or more independent acts as...