Massachusetts Bonding & Ins. Co. v. Free

• Decision Date: 31 October 1919
• Docket Number: No. 10036.,10036.
• Citation: 71 Ind.App. 275,124 N.E. 716
• Court: Indiana Appellate Court
• Parties: MASSACHUSETTS BONDING & INS. CO. v. FREE.

71 Ind.App. 275

124 N.E. 716

MASSACHUSETTS BONDING & INS. CO.

v.FREE.

No. 10036.

Appellate Court of Indiana, Division No. 2.

Oct. 31, 1919.

Appeal from Superior Court, Marion County; V. G. Clifford, Judge.

Action by Marry A. Free against the Massachusetts Bonding & Insurance Company From judgment for plaintiff, defendant appeals. Affirmed.

G. R. Estabrook, of Indianapolis, for appellant.

N. E. Carter and Pliny W. Bartholomew, both of Indianapolis, for appellee.

NICHOLS, P. J.

This action, in the Marion superior court, was by the appellee against the appellant upon an insurance policy issued to Addison Free, and naming the appellee, who was the wife of the assured, as beneficiary.

It is averred in the complaint that the said Addison Free, while at work in Indianapolis, Marion county, Ind., was poisoned by the accidental, involuntary, and unconscious inhalation of sewer gas, which poisoned his system to such an extent that he died from the same on the 27th day of August, 1915.

[1][2] The complaint is challenged by demurrer, for the reason that it does not show that the death in question resulted solely from the involuntary and unconscious inhalation of sewer gas. The policy, which is made a part of the complaint by exhibit, provides that-

“If loss of life of the insured shall *** result solely from *** the involuntary and unconscious inhalation of gas or other poisonous vapor, the company will pay in lieu of all other indemnity, the original principal sum.”

The allegation of the complaint is sufficient to withstand the demurrer, but if it were not, the statement in the policy controls and aids it, thereby rendering it sufficient. The demurrer was properly overruled. Bayless v. Glenn, 72 Ind. 5;Reynolds v. L. N. & C. Ry. Co., 143 Ind. 621, 40 N. E. 410;Huber Mfg. Co. v. Wagner, 167 Ind. 98, 78 N. E. 329.

[3][4] The appellant filed an answer to the complaint, in eight paragraphs, the first of which was a general denial. The appellee filed a demurrer for want of facts to each the second, third, fifth, and sixth paragraphs of said answer, which was sustained to each of said paragraphs, and the appellant complains of this ruling of the court as error. The second,third, and fifth paragraphs of said answer each aver another cause, or contributing cause, of the insured's death, and the sixth paragraph avers that the insured knowingly inhaled the sewer gas. Such facts, so far as material, were provable under the general denial; hence the demurrer to each of the paragraphs alleging them was properly sustained. Lehman v. City of Goshen, 178 Ind. 54, 98 N. E. 1, 710.

[5][6][7] Appellant contends that the evidence is not sufficient to sustain the verdict, that the verdict is contrary to law, and that the damages are excessive. The verdict of the jury finds every material fact averred in the complaint in favor of the plaintiff, and there is evidence to sustain such finding, including the amount of recovery. This court will not weigh the evidence. Appellant has given no reason why the verdict is contrary to the principles of law as applied to facts found by the jury, and we see none. Appellant's motion, at the close of the evidence, to direct a verdict, was properly overruled. To have ruled otherwise would have been a clear invasion of the province of the jury, as there was evidence upon each material allegation of the complaint. A peremptory instruction should not be given, except where there is total failure of evidence and inference upon an essential matter, and the court must accept as true all the evidence and inferences against the one making the motion. Matthews v. Myers, 115 N. E. 959. See, also, Abendroth v. ...