Norways Sanatorium v. Hartford Acc. & Indem. Co.

• Decision Date: 26 May 1942
• Docket Number: 16852.
• Citation: 41 N.E.2d 823,112 Ind.App. 241
• Court: Indiana Appellate Court
• Parties: NORWAYS SANATORIUM, Inc., v. HARTFORD ACCIDENT & INDEMNITY CO.

41 N.E.2d 823

112 Ind.App. 241

NORWAYS SANATORIUM, Inc., v. HARTFORD ACCIDENT & INDEMNITY CO.

No. 16852.

Appellate Court of Indiana, in Banc.

May 26, 1942

Rogers & Smith, of Lebanon, and Ruckelhaus & Ruckelhaus, of Indianapolis, for appellant.

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

BEDWELL Judge.

On May 23, 1936, the appellee, Hartford Accident & Indemnity Company, issued to the appellant, Norways Sanatorium, Inc. its policy of insurance by the terms of which the appellee agreed "to pay any loss by liability imposed by law upon the assured for bodily injuries (or death, loss of services or expenses resulting therefrom) accidentally sustained during the policy period, by any person not employed by the assured, caused by (a) the ownership, care, maintenance, occupation or use of the premises described in the Declarations or (b) by any business operations disclosed in the Declarations, conducted by the assured on the premises, * * *."

The insurance agreement was subject to certain conditions and there were certain exclusions from the coverage of the policy. It specifically provided:

"This policy shall not cover in respect of any loss caused by:

* * * * *

"(7) the rendering of any professional service or the omission thereof by any physician, surgeon, dentist, druggist, prescription clerk, nurse, chiropodist, barber, hairdresser, and/or other attendant or in consequence of any error or mistake made by any employee of the assured in selling, furnishing or delivering any drugs or medicines or in filling any order for the same; * * *."

The policy period was for one year and the premises, the description and location of which were contained in the policy, was described as "Asylums or Sanitariums--Private Residence--Nurses Home." The appellant was engaged in the business of caring for and treating persons for nervous and mental disorders.

About December 8, 1936, while such policy of insurance was in full force and effect, one William J. Day was a patient at the sanatorium of appellant and at such time, and while, because of his mental condition, he was incapable of caring for himself, such patient jumped or fell from an unguarded window on the second floor of the sanatorium and thereby sustained certain personal injuries, including a fracture of his right foot and leg. Thereafter, and on November 10, 1938, Day filed a suit against the appellant to recover damages because of such injuries. The appellant notified the appellee of the filing of this suit but the appellee advised the appellant that it would not defend the action because its policy of insurance did not cover the alleged claim of Day. The appellant then employed its own attorneys, and a physician to make a medical examination of the claimant, and on or about June 19, 1939, a judgment was entered in said cause in favor of the plaintiff, William J. Day, and against the defendant, Norways Sanatorium, Inc., in the amount of $1,000 with costs.

The amended complaint filed by Day against appellant contained the following allegations concerning negligence: "That on or about said date of December 8, 1936, and at a time that this plaintiff was in said mental, nervous, and physical condition as hereinbefore described and while and at a time that said defendant herein knew of said condition and while in the care and custody of said defendant institution, the said defendant carelessly and negligently failed to guard, supervise, and exercise the requisite skill and care in watching the actions and conduct of this plaintiff and negligently and carelessly omitted and failed to place this plaintiff in a safe and proper place where he could not, owing to said condition as hereinbefore set out, harm or injure himself, but on the contrary, negligently and carelessly permitted this plaintiff to go into a bathroom on the second floor of the said building owned and used by said defendant, unescorted and unattended, and from an unbarred window in this bathroom this plaintiff either jumped or fell to the ground below, a distance of approximately sixteen feet, and, as a result of said fall, this plaintiff sustained the following injuries: * * * ."

The appellant filed an action against the appellee to recover the sum of $1,252.95 as loss alleged to have been sustained by it because of such judgment procured against it by William J. Day, and the cost and expenses incident to the defense of such action. The trial court found for the appellee, and the only question involved in this appeal is the sufficiency of the evidence to sustain the decision of the trial court.

The policy of insurance provided that in the event of accident written notice thereof should be given to the insurer, or one of its duly authorized agents, with particulars sufficient to identify the assured, and that there should be a like notice of any claim or suit arising or resulting therefrom. It further provided that the assured should not in any way acknowledge or admit any liability on account of any accident nor settle any claim or suit resulting therefrom, nor, without the consent of the insurer, incur any expense other than for immediate medical or surgical...