Norways Sanatorium, Inc. v. Hartford Accident & Indem. Co.

• Decision Date: 21 October 1942
• Docket Number: No. 16852.,16852.
• Citation: 112 Ind.App. 241,44 N.E.2d 192
• Parties: NORWAYS SANATORIUM, Inc., v. HARTFORD ACCIDENT & INDEMNITY CO.
• Court: Indiana Appellate Court

112 Ind.App. 241

44 N.E.2d 192

NORWAYS SANATORIUM, Inc.,

v.HARTFORD ACCIDENT & INDEMNITY CO.

No. 16852.

Appellate Court of Indiana, in Banc.

October 21, 1942.

Appeal from Boone Circuit Court; Ernest R. Stewart, Judge.

On petition for rehearing.

Petition overruled.

For former opinion, see 41 N.E.2d 823.Rogers & Smith, of Lebanon, and Ruckelshaus & Ruckelshaus, of Indianapolis, for appellant.

Slaymaker, Merrell & Locke, of Indianapolis, and Parr, Parr & Parr, of Lebanon, for appellee.

BEDWELL, Judge.

Appellee, in support of its petition for a rehearing, stresses its contention that the appellant failed in its proof of a cause of action because it failed to introduce into evidence the original complaint that was filed by William J. Day against Norways Sanatorium, Inc.

The judgment fixing the liability of appellant to Day was rendered on an amended complaint instead of the original complaint. Appellee, at the trial of the cause in the court below, in its objections to the introduction of evidence, maintained that the judgment entered upon the amended complaint was binding upon both the appellant and the appellee, and that the only issue for determination that was made by the pleadings, was whether the amended complaint upon which the judgment was rendered stated a cause of action that was covered by the terms of the contract of insurance.

The answer filed by appellee in the court below contained two paragraphs, the first being in general denial, and the second setting up, solely, as an affirmative defense, the claim of appellee that it was not required to defend the action instituted by William J. Day against Norways Sanatorium, Inc., because Day's injury resulted from the rendering or omission of professional services by a physician or nurse, and that such injuries were excluded from the policy.

In the court below appellee asserted no claim by pleading or otherwise that it did not have full knowledge and notice concerningthe facts involved in the claim of Day against Norways Sanatorium, Inc., when it denied liability. In its letter to the Norways Sanatorium, Inc., denying liability, which was introduced into evidence, it made the following statement: “We have carefully considered the circumstances surrounding this accident and the allegations in the complaint prepared by Mr. Day's attorney, and are of the opinion that this case is not covered by our policy of insurance No. GL-392414, but is expressly excluded from coverage.”

Appellee did not refuse to defend because of the allegations of the original complaint. It refused to defend because it erroneously believed that the cause of action asserted by Day was excluded from the coverage of its policy.

[1][2] By the terms of its policy the appellee agreed, “to pay any loss by liability imposed by law upon the assured.” To determine the liability imposed by law upon the assured, we look to the...