Metropolitan Life Ins. Co. v. Glassman

• Decision Date: 11 December 1946
• Docket Number: 28210.
• Citation: 70 N.E.2d 24,224 Ind. 641
• Parties: METROPOLITAN LIFE INS. CO. v. GLASSMAN.
• Court: Indiana Supreme Court

70 N.E.2d 24

224 Ind. 641

METROPOLITAN LIFE INS. CO. v. GLASSMAN.

No. 28210.

Supreme Court of Indiana

December 11, 1946

Appeal from Marshall Circuit Court; Alvin F. Marsh, Judge.

Bomberger, Morthland & Royce, of Hammond George F. Stevens, of Plymouth, and Harry Cole Bates, of New York City, for appellant.

James P. Gleason and Francis G. Feddler, both of Michigan City, and Marshall F. Kizer, of Plymouth, for appellee.

O'MALLEY Judge.

The appellee was the named beneficiary in a policy of insurance issued by the appellant to Elmer T. Krueger, who, in his lifetime, was the husband of appellee. This policy, by its terms, bound the appellant to pay to the beneficiary the sum of $1000 upon the death of Elmer T. Krueger from any cause. It also had attached thereto what is sometimes called a 'double indemnity rider,' by the terms of which the benficiary would receive an additional sum of $1000 if the death of the insured resulted in consequence of bodily injury effected solely through external, violent and accidental means.

The issues formed by the complaint and answers narrowed the points in dispute to three questions as follows: 1. Was the death caused by accidental means? 2. Did payment of the death claim on the main policy constitute payment so as to defeat the right of action on the double indemnity rider? 3. Did the failure of the jury to follow an instruction of the court constitute reversible error?

The evidence was to the effect that the decedent was the husband of the appellee; that he died on June 23, 1943; that appellee and the decedent resided in a flat on Willard Avenue in Michigan City, Indiana, during all of their married life excepting a period of 15 months; that he left the flat at a quarter to nine on the morning of his death that the flat was over a grocery store; that there was a back porch to the flat on which decedent kept his bicycle; that he worked at the post office for more than 20 years; that he went to the post office by bicycle or automobile; that he kept his automobile in a double garage to the rear of his flat; that the stall in which he kept his car was 19 feet 4 inches long, 9 feet and 9 inches wide and 10 feet high; that it had a service door 6 feet 6 inches high and 2 feet 7 inches wide and had a large door through which the car was driven; that on leaving he bade the appellee 'good bye' in the kitchen of the flat; that before leaving he kissed her; that about one hour after he left his flat the postmaster called and stated that he had not yet arrived that some time after the phone call, the appellee went out the back door of the flat and to the service door of the garage; that she noticed the door of the garage was open and bluish smoke was coming out; that she then ran for help; that the man who was called, entered the garage through the service door and opened the large doors at the other end; that at that time the car engine was not running but the ignition key was turned on; that the left front door of the car was open and a small box of matches and a package of cigarettes were on the front seat; that the decedent was on the floor of the garage when found; that the man who was summoned took hold of the shoulders of the decedent and permitted the feet to drag and thus moved the body out into the alley to a grassy spot; that decedent's brother and others then came and resuscitation was attempted; that at the time that they were attempting resuscitation there was a bruise or red mark on the forehead of the decedent; that there were cinders in his mouth and scratches on his hands; that the floor of the garage was of cinders and dirt; that the face of decedent was dirty from its contract with the floor; that when found the head of the decedent was toward the rear of the car and the feet were about even with the open front door thereof; that the decedent had been short in his stamp account and had paid a sum in excess of $300 to make up for the shortage about a month before his death; that the day before his death his stamps were inventoried and found short in excess of $900; that he said he had not taken any money or stamps; that he did not know how there could be a shortage but that he was satisfied with the inventory; that subsequent to his death the government paid his salary to the appellee and later paid her the amount due him from the pension fund; and that there were no deductions taken from that amount.

It further appeared from the evidence that he and his family owned the real estate where he and his brother lived, a part of which was rented to mercantile establishments; that he was 43 years of age and in good health; and that in the year 1937, he had been overcome with fumes from a gas heater in the bathroom of his flat.

While three questions are raised, the appellant has waived questions number two and three and the one question to be determined is whether or not there was evidence from which death by accidental means could be...