National Life and Accident Insurance Company v. Williams

• Decision Date: 05 April 1923
• Docket Number: 11,508
• Parties: NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY v. WILLIAMS
• Court: Indiana Appellate Court

138 N.E. 826

84 Ind.App. 343

NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY v. WILLIAMS

No. 11,508

Court of Appeals of Indiana

April 5, 1923

Rehearing denied June 26, 1923.

Transfer denied April 1, 1926.

From Marion Circuit Court (33,156); Harry O. Chamberlin, Judge.

Action by John T. Williams against the National Life and Accident Insurance Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

John H Rader and Felt & Forney, for appellant.

Bingham & Bingham, James Bingham and Remster A. Bingham, for appellee.

OPINION

MCMAHAN, J.

Complaint by appellee on an accident insurance policy issued to Mart M. Williams, insuring him against loss of life resulting, directly and independently of all other causes, from bodily injury received accidentally through external and violent means.

The cause was tried on an amended complaint which, after alleging the issuance of the policy, alleged payment of all premiums by the insured; that on January 20, 1920, the insured accidentally fell upon and through a railroad bridge in such a manner as that he was injured and that he died January 26, 1920, as the direct and exclusive result of such injury. It is also alleged that the insured had performed all the provisions on his part to be performed; that appellee was named a beneficiary in the policy; that proofs of death were furnished and that a copy of the policy was filed with the complaint.

Appellant answered in three paragraphs. The first was a general denial. The second alleged the insured died of a disease and not directly and exclusively from an accidental bodily injury. The third was, in substance, the same as the second, the only difference being that in this paragraph, the allegation that the insured died from disease is omitted and it is alleged that his death was not the direct result of the bodily injury alleged in the complaint. The issues being closed by a reply in general denial, there was a trial by jury which resulted in a verdict and judgment for appellee.

Appellant contends: (1) That the evidence wholly fails to prove that the death of the insured resulted from an accidental bodily injury, effected through external and violent means independently of all other causes; (2) that the verdict rests wholly upon speculation and inferences not warranted by the evidence.

The insured died January 26, 1920. January 30, 1920, appellee wrote a letter to appellant wherein he stated that he enclosed affidavits of himself, of Lizzie Williams, wife of the insured, and of Matilda Robbins, relative to the death of the insured. In this letter, appellee stated the insured had died from the effect of an accidental injury received in falling through a bridge. Appellant, on February 9, 1920, wrote a letter to appellee stating it had an affidavit that the insured was killed by falling through a bridge; that death proof and other forms were enclosed for appellee to have filled and executed and returned for adjustment of claims. On June 10, appellee made proof of death and furnished statements as called for in appellant's letter of February 9, and on June 22, 1920, appellant wrote a letter to appellee acknowledging receipt of the proofs of death but denying liability upon the ground that it appeared from the proofs that the death of the insured "was not the result of an accidental injury but was due to a disease." In a letter written by the general manager of appellant to appellee's attorneys on July 24, appellant said, "We have positive proof by the attending physician and others that the injury that claimant sustained on January 19th by falling on a bridge, was so slight that it was impossible for it to have caused this man's death. We also have positive proof of the fact that the injury did not prevent him from working."

None of the witnesses who testified at the trial was with the insured when he was injured, consequently there was no direct evidence as to how he was injured. He suffered an injury January 19. His widow testified that the insured had been sick--had complained of his injury, but did not quit work; complained of the injury from the time he received it until his death; he died Monday, January 26; called doctor day before he died on account of his injury; he left home about 6 o'clock in the morning for work and she received word of his death about an hour and a half later. She placed adhesive tape over the injured places in groin and hip. She saw the bruised places several times but did not consider them dangerous. He was foreman in the woods, but did not do any of the work himself. She was at home when he came home and began complaining of his hip and groin; he continued to complain of the injury from that time until his death, although he continued to work during the day from the time of his injury until his death.

Other witnesses testified that the insured was a strong, healthy man. A witness who was present when he died, said he came to where the witness was and said, "Good morning," and complained of being sore from his fall and injury; they talked a short time, when the insured said "Let's go boys," witness turned around, took a couple steps and heard someone say "Catch him," and, on turning around, he saw the insured who was about eight feet away falling. Never heard him speak again. He did not live more than five minutes after he fell.

Several physicians testified as experts as to the cause of his death, and, from their evidence, the jury was justified in finding that his death was the result of the injuries which he received January 19. There is no evidence of any other cause of death. The insured was a strong, healthy, robust man, forty-six years of age, and had never been sick.

In further support of its contention that the verdict was not sustained by sufficient evidence, appellant calls attention to the fact that the insured was alone when injured and says that no eye witness testified that he received his injury accidentally. Appellee concedes that no witness who testified saw the insured when he was injured or testified as to how the injury was received. He insists, however, that the letter of July 24, 1920, heretofore referred to and written by Mr Thompson, appellant's general manager, to appellee's attorneys, wherein Mr. Thompson says, "We have positive proof by the attending physician and others that the injury that claimant sustained on January 19th, by falling on a bridge," etc., is sufficient to have authorized the jury in finding that appellant had made an investigation of its own and, from such investigation, learned that the insured was injured January 19, by falling on a bridge, and that such statement or admission as to when and how the injury occurred not being made in an attempt to settle or compromise the claim and not constituting a point yielded by appellant for the sake of peace, but being a statement of an independent fact, is sufficient to sustain the allegation that the insured suffered an accidental injury. It is a well-settled rule that, "an offer, concession or admission, made in the course of an ineffectual treaty of compromise, and constituting, in itself, the point yielded for the sake of peace, and not because it was just or true, is not competent evidence...