Masonic Protective Association v. Farrar

• Citation: 126 N.E. 435,73 Ind.App. 19
• Decision Date: 12 March 1920
• Docket Number: 10,262
• Parties: MASONIC PROTECTIVE ASSOCIATION v. FARRAR
• Court: Indiana Appellate Court

126 N.E. 435

73 Ind.App. 19

MASONIC PROTECTIVE ASSOCIATION v. FARRAR

No. 10,262

Court of Appeals of Indiana

March 12, 1920

From DuBois Circuit Court; John L. Bretz, Judge.

Action by John P. Farrar against the Masonic Protective Association. From a judgment for plaintiff, the defendant appeals.

Reversed.

Leo H Fisher, for appellant.

R. W Armstrong, for appellee.

OPINION

ENLOE, J.

This action was begun by appellee against appellant before a justice of the peace, upon a complaint in one paragraph, to recover benefits alleged to be due the appellee upon a policy of accident insurance.

From the judgment rendered by such justice, an appeal was taken to the Dubois Circuit Court, where the cause was submitted to the court for trial, resulting in a finding and judgment against appellant for the sum of $ 150. A motion for a new trial having been duly filed and overruled, this appeal is prosecuted, and the overruling of said motion is the only error assigned, and the only reasons stated in said motion which we need consider are: (1) That the decision is contrary to law; and (2) is not sustained by sufficient evidence.

The only part of the complaint which we need to consider is that relating to the promise of the appellant to the appellee, and which is in substance as follows: That by said policy said appellant did promise to pay to appellee, in the event of accidental injury due to violent, external and involuntary causes, and which should totally disable appellee, the sum of $ 50 per week, for a period not to exceed ten weeks, if the appellee should receive his said injury while a guest in any public hotel. A copy of the policy was filed with the complaint, as an exhibit, and expressly made a part thereof. The complaint further alleged that on January 30, 1917, while said policy was in force, the appellee, while a guest in a public hotel in the town of Cannelton, Indiana, received an injury in endeavoring to escape from said hotel in the nighttime, by reason of said hotel being then and there on fire; and that the injuries were due to violent, external and involuntary causes, and that said injury was an accident insured against by said policy. There are further allegations concerning the extent of the disability, but, as the sufficiency of the complaint was not questioned, we need not further refer to the allegations thereof.

The particular clause in the policy relied upon by appellee, for a recovery in this case, was the following, viz.:

"Special Indemnity.

"D.--If immediately and totally disabling injuries described in Clause A shall be received by the insured (1) while * * *, or (2) while a guest in any public hotel * * * and while, in consequence of the burning thereof, attempting to escape therefrom the Association will pay, in lieu of any other indemnity, and for a period not to exceed ten weeks, a special indemnity of Fifty Dollars, for each entire week of total disability."

Clause "A," to which reference is made in Clause "D," supra, was as follows, viz.:

"A. For disability resulting solely from accidental injuries due to violent external and involuntary causes and leaving visible marks of wounds, fracture or dislocation upon the body of the insured, and which shall alone and continuously from the date of the accident totally disable the insured and require the regular and personal attendance of a qualified physician, the association will pay * * *."

Before the insured would be entitled to claim any benefits under the above clauses certain things must concur, viz.: (1) The disability must result solely from accidental injuries due to violent, external, and involuntary causes; (2) the causes must be evidenced by visible marks of wounds, fracture, or dislocation, upon the body, etc.; (3) which shall alone and continuously, from the date of the accident, totally disable the insured and require the regular and personal attendance of a qualified physician; and, under Clause "D" (4), the injuries must be immediately and totally disabling.

The appellee testified as a witness in his own behalf. His testimony was in substance, so far as the same is material to be considered in passing upon the questions involved in this appeal, as follows: "On the night of January 30, 1917, I was a guest at the Sunlight Hotel, in Cannelton, Indiana; at about one o'clock at night, I was awakened by one of the servants who told me to get out, that the hotel was on fire. I was sleeping in a room on the third floor. When I got up I found that the stairway had burned out; it was all aflame and I couldn't go that way; there was just one way to get out and make my...