McElfresh v. Odd Fellows Acc. Co. of Boston

• Decision Date: 15 February 1899
• Parties: McELFRESH v. ODD FELLOWS ACC. CO. OF BOSTON.
• Court: Indiana Appellate Court

21 Ind.App. 557

52 N.E. 819

McELFRESH

v.ODD FELLOWS ACC. CO. OF BOSTON.

Appellate Court of Indiana.

Feb. 15, 1899.

Appeal from circuit court, Dearborn county; A. C. Downey, Judge.

Action on an accident policy by Samuel McElfresh against the Odd Fellows Accident Company of Boston, Mass. From a judgment sustaining a demurrer to the plaintiff's complaint, he appeals. Reversed.

Roberts & Strapp, for appellant. Martin J. Givans, for appellee.

BLACK, C. J.

The only question presented by this appeal is that of the sufficiency on demurrer of the appellant's complaint, which was based upon a policy of insurance. By the terms of the policy the appellee insured the appellant against loss of time resulting from external, violent, and accidental means within the terms and conditions of the policy, and which immediately, continuously, and totally disabled and prevented him from transacting any and every kind of business pertaining to his occupation, which was stated to be that of a general insurance agent, not to exceed 52 consecutive weeks, and provided further that the loss for which claim should be made was a total disability, resulting immediately and continuously from external, violent, and accidental means within the terms and conditions of the policy, and was not caused or contributed to by any form of disease or bodily ailment, but was caused exclusively by bodily injuries which left external and visible marks of contusion or wounds upon the body, effected by external, violent, and accidental means, occurring while the policy was in force. The sum insured for loss of time as aforesaid was $25 per week. The complaint, setting up the policy, averred that on, etc., while the policy was in force, and while the appellant was engaged in lawful business, and not in any business or in doing any of the things prohibited by the terms and conditions of the policy, he, in running to the wreck of a train on a named railway track, at, etc., caught his foot in some concealed wires along the embankment of such railway track, and was thrown down such embankment, injuring, lacerating, and tearing the muscles and flesh of the palm of his right hand from the fingers back to the wrist thereof, bruising and jarring his right shoulder, straining the muscles and leaders thereof, causing the swelling of the same and stiffening of the joint, and “that from such injuries he was immediately, continuously, and totally disabled, and prevented from transacting any and...