Miller v. Ft. Wayne Mercantile Acc. Ass'n

• Decision Date: 08 October 1926
• Docket Number: No. 12495.,12495.
• Citation: 153 N.E. 427,87 Ind.App. 561
• Parties: MILLER v. FT. WAYNE MERCANTILE ACC. ASS'N.
• Court: Indiana Appellate Court

87 Ind.App. 561

153 N.E. 427

MILLER

v.FT. WAYNE MERCANTILE ACC. ASS'N.

No. 12495.

Appellate Court of Indiana, in Banc.

Oct. 8, 1926.

Appeal from Adams Circuit Court; Jesse C. Sutton, Judge.

Action by Hannah L. Miller against the Ft. Wayne Mercantile Accident Association. Judgment for defendant, and plaintiff appeals. Affirmed.

Bowers, Feightner & Bowers, of Huntington, for appellant.

Hoffman, Shoaff & Hoffman, of Ft. Wayne, for appellee.

McMAHAN, P. J.

Action to recover on an accident insurance certificate. Appellee by answer alleged that the death of the insured resulted from a cause which was excepted from the operation of the certificate, in that the insured died from the effects of accidentally swallowing poison.

Appellee is a mutual accident association organized to secure voluntary contributions to its members or to designated beneficiaries in case of death by accidental means. The deceased was concededly a member in good standing at the time of his death. Appellant was the beneficiary under the certificate. The death of the insured resulted from accidentally swallowing carbolic acid under the following circumstances: The insured, being afflicted with a cold, procured some medicine. At that time his infant child was sick with typhoid fever and under the care of a nurse, who had procured a bottle of carbolic acid to be used as an antiseptic. The insured, intending to take a dose of the medicine, accidentally selected the wrong bottle and by mistake took some of the carbolic acid. The insurance certificate specifically excepted from its operation death from specified causes, including death from poison. This particular exception was set forth in the insurance certificate as follows:

“It is also expressly understood and agreed that the Ft. Wayne Mercantile Accident Association shall not be liable for death, nor disability, caused or resulting from *** injury (fatal or otherwise) resulting from any poison, or infection, or from anything accidentally or otherwise taken, administered, or inhaled,” etc.

The trial court overruled a demurrer to the answer, and judgment was rendered against appellant that she take nothing; hence this appeal.

The particular object of the association, as stated in its articles of incorporation, was to collect a fund to be held for the mutual benefit and protection of its members (or their beneficiaries), who, while members, shall have sustained bodily injury, producing disability or death, through or by external, violent and accidental means and under “such conditions, provisions, limitations, and exceptions as may be established under the constitution, rules, and by-laws of the association.”

The constitution of the association limited the membership to persons of certain named nonhazardous occupations. In order to become a member, an applicant was required to pay a membership fee of $1 and one assessment fee of $2 in advance, such assessment fee to be placed to the credit of the applicant, if admitted to membership, to pay the first assessment following his admission. Article V of the constitution provides that on the death of a member by accident an assessment of $2 shall be made on each member, and the amount of such assessment, not to exceed $5,000, paid to the beneficiary of any member whose death resulted from an accident, and that a like assessment shall be made for injuries covered by section 2, article VI of the constitution, this article VI being headed “Accidental Death Benefits.” Section 1 of this article provides that, whenever a member of the association shall “through external, violent and accidental means alone, sustain bodily injuries, of which there are visible marks of injury, which shall, independently of all other causes, result in death” within 90 days thereafter, and on proof being duly made, an assessment of $2 on each member shall be made, and out of the amount so collected the beneficiary of such member or his representatives shall be paid an amount not exceeding $5,000. Sections 2 and 3 relate to specific accident benefits and weekly indemnities allowed for certain named injuries.

Article VII is headed “Rules Governing Payments of Benefits.” Section 1 of this article exempts the association from liability in case of injuries, fatal or otherwise, resulting from a number of designated causes, among which are injuries arising from “voluntary or involuntary, conscious or unconscious inhalation of any gas, anæsthetic, fumes or vapor; from anything accidentally or otherwise taken, administered, absorbed, or inhaled. ***” Section 2 reads as follows:

“The association shall not be liable for death nor disability resulting directly or indirectly, wholly or in part from any of the following causes: Sunstroke, freezing, *** nor for death or disability caused directly or indirectly wholly or in part, from any poison. ***”

The contention of appellant is that, under the foregoing provisions of the certificate, “there must be a conscious taking of the poison to authorize denial of indemnity.” The following authorities are cited in support of this contention: Paul v. Travelers' Ins. Co., 112 N. Y. 472, 20 N. E. 347, 3 L. R. A. 443, 8 Am. St. Rep. 758;Pickett v. Pacific Mutual, 144 Pa. 79, 22 A. 871, 13 L. R. A. 661, 27 Am. St. Rep. 618;Fidelity Co. v. Waterman, 161 Ill. 632, 44 N. E. 283, 32 L. R. A. 654;Lowenstein v. Fidelity & Casualty Co. (C. C.) 88 F. 474, on appeal Fidelity & Casualty Co. v. Lowenstein, 97 F. 17, 38 C. C. A. 29, 46 L. R. A. 450;Menneiley v. Employers', etc., Corp., 148 N. Y. 596, 43 N. E. 54, 31 L. R. A. 686, 51 Am. St. Rep. 716;Travelers' Ins. v. Ayers, 217 Ill. 390, 75 N. E. 506, 2 L. R. A. (N. S.) 168;Travelers' Ins. Co. v. Dunlap, 160 Ill. 642, 43 N. E. 765, 52 Am. St. Rep. 355;Metropolitan v. Froiland, 161 Ill. 30, 43 N. E. 766, 52 Am. St. Rep. 359;Dezell v. Fidelity, 176 Mo. 253, 75 S. W. 1102;Miller v. Fidelity, etc., Co. (C. C.) 97 F. 836.

In the New York cases of Paul and Menneiley the policy exempted the insurance company from liability on account of death “from inhaling gas.” The exemption in the Pickett Case was from “inhalation of gas”; in the Dunlap Case, from “taking poison”; in the Waterman, Lowenstein, Miller, and Dezell Cases, from “poison or anything accidentally or otherwise taken, administered, absorbed, or inhaled”; in the Ayers Case, for death “resulting, wholly or partly, directly or indirectly, *** from any gas or vapor.” In the first six cases, death was caused by the unconscious inhalation of gas. In each of these cases it was held that the words expressing the intention of the insurer not to be liable for death from inhaling gas meant a voluntary and intelligent act by the insured, and not an involuntary and unconscious act.

In Travelers' Ins. Co. v. Dunlap, supra, the insured came to his death by taking carbolic acid in place of a medicine which he desired to take. Following the Paul Case, it was held that the term “taking poison” meant an “intelligent and conscious act.” And in Metropolitan Accident Ass'n v. Froiland, supra, the insured died from poison which he drank by accident, intending to drink distilled water. The insurer there contended there could be no recovery, because the term “poison in any way taken” included poison accidentally taken, as well as poison taken intentionally; that the qualifying words “in any way” related to the motive of the insured in taking the poison, and embraced his involuntary as well as his voluntary action in that regard. The court, however, held the words “in any way” related to the mode or manner in which the poison was taken, and not to the motive in taking it, and that the death, having been caused by accident, was not excluded from the risks covered by the contract of insurance.

In Miller v. Fidelity & Cas. Co. (C. C.) 97 F. 836, the policy excepted “injuries, fatal or otherwise, resulting from poison or anything accidentally or otherwise taken, administered, absorbed, or inhaled, *** or any disease or bodily infirmity.” A complaint alleging that the insured sustained bodily injury by swallowing hard, pointed, and resistent food, which accidentally, by reason of the force and manner with which it came in contact with the intestinal tissue, accidentally,by reason of a weakened condition caused by an illness of which the insured had otherwise recovered, and of which weakened condition the insured had no knowledge, and so perforated the intestines as to cause death. The court simply held the complaint stated facts sufficient to show the death was accidental.

In the Dezell Case death resulted from an overdose of morphine taken in good faith as a medicine prescribed by a physician to alleviate physical pain. It was held that the exception in the policy did not cover medicine, even though it contained poison taken or administered in good faith to alleviate physical pain. It was held that the exception in the policy did not cover medicine, even though it contained poison taken or administered in good faith to alleviate physical pain.

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