McCoy v. Farm Bureau Mut. Ins. Co. of Ind., 18376

• Decision Date: 21 April 1953
• Docket Number: No. 18376,18376
• Citation: 111 N.E.2d 728,123 Ind.App. 424
• Parties: McCOY et al. v. FARM BUREAU MUT. INS. CO. OF INDIANA, Inc.
• Court: Indiana Appellate Court

Page 728

111 N.E.2d 728

123 Ind.App. 424

McCOY et al. v. FARM BUREAU MUT. INS. CO. OF INDIANA, Inc.

No. 18376.

Appellate Court of Indiana, in Banc.

April 21, 1953.

Frank I. Hamilton, Greensburg, Edgar E. Hite and Ronald Beard, Greensburg, for appellants.

Hugh D. Wickens and Hubert E. Wickens, Greensburg, for appellee.

ACHOR, Judge.

This is an appeal from a judgment, adverse to the appellants, who were the plaintiffs in the court below. In the action, appellants sought to recover on an automobile accident insurance policy issued by appellee to decedent. The policy, among other things, provided for payment of $500 in event of bodily injury caused by accident while the insured was in the described automobile and 'in the event of death resulting from such injury.'

Special findings of fact and conclusions of law were requested and made by the court. Among errors assigned in appellants' motion for a new trial, and made the grounds of this appeal, are '(2) that the decision is contrary to law' and '(4) that the special findings of fact and each of them separately and severally are not sustained by sufficient evidence.' As the record appears before us, two basic questions are presented for decision, the first being whether or not the special findings of fact are sustained by the evidence, and second, whether the conclusions of law are supported by the findings of fact.

There is serious doubt as to whether or not the appellants' brief contained all the evidence material to the case. Inasmuch as appellants challenge the sufficiency of the evidence to sustain the findings of fact, failure to include such material evidence would waive any issue as to the sufficiency of the evidence in this appeal. Rule 2-17(d) of the Supreme and Appellate Courts of Indiana, Flanagan, Wiltrout & Hamilton's Indiana Trial and Appellate Practice, Ch. 53, § 2677, Comment 8, page 307. However, inasmuch as there is some ambiguity in the record as to the admission of omitted evidence, we choose to decide the case upon other grounds.

The court, in the finding of fact numbered 11, found as follows: 'That the accidental injuries shown by the evidence were not of such a nature as to cause death.' It is appellants' contention that the weight of the evidence and every reasonable inference which may be drawn therefrom are clearly against said finding. We, therefore, examine the evidence to determine whether or not the evidence is such that reasonable men could come to the sole conclusion that (1) the injuries, as contended by appellants, were of such a nature as to cause death, and (2) that decedent died as the result of said injuries sustained in the accident.

The evidence, in substance, is that decedent, immediately prior to the accident, was driving at a speed of 30 to 50 miles an hour on a curved road when he sideswiped another car, after which his car traveled at a 45° angle a distance of 75 to 100 feet, going across and off the road, making skid marks on the pavement and grass, after which it hit a tree. That during said time, decedent was sitting behind the wheel in an apparently normal position. That as a result of the collision, the decedent sustained two minor scratches or cuts on his face. The steering wheel was bent down two or three inches and the front end of the car was damaged extensively, although the motor continued to run. Decedent was declared dead less than an hour after the collision. Appellants contend that, contrary to finding number 11, the evidence necessarily leads to the conclusion that the injuries were of 'such a nature as to cause death' and that decedent died as a result of the accident.

However, other...