Orey v. Mut. Life Ins. Co. of New York

CourtCourt of Appeals of Indiana
Citation15 N.E.2d 100
Docket NumberNo. 15726.,15726.
Decision Date01 June 1938

15 N.E.2d 100


No. 15726.

Appellate Court of Indiana, in Banc.

June 1, 1938.

Appeal from Lawrence Circuit Court; John C. Branaman, Judge.

Action by Paul Orey against the Mutual Life Insurance Company of New York to recover double indemnity benefits under life policy. From a judgment for the defendant, the plaintiff appeals.


[15 N.E.2d 100]

Shake & Kimmel, of Vincennes, and Albert J. Fields, of Bedford, for appellant.

Gavin & Gavin, of Indianapolis, and Frederick L. Allen, of New York City, for appellee.

WOOD, Judge.

The appellant, as the named beneficiary of a life insurance policy issued by the appellee, upon the life of one Leo J. Orey, brother of appellant, brought suit upon said policy to recover double indemnity for the death of the insured, which the appellant

[15 N.E.2d 101]

alleged resulted from bodily injuries effected pursuant to the terms and conditions of a double indemnity clause contained in the policy.

The issues consisted of a complaint in one paragraph and answer in two paragraphs, first, general denial and second, payment, and a reply in general denial to the second paragraph of answer. The cause was submitted to the court and a jury for trial. At the conclusion of the plaintiff's (appellant's) evidence, the jury in obedience to a peremptory instruction of the court, returned a verdict in favor of appellee. Appellant filed a motion for a new trial alleging as cause therefor the giving of said peremptory instruction. This motion was overruled. Judgment was rendered on the verdict in favor of appellee. Appellant appeals, assigning as error for reversal, the overruling of his motion for a new trial.

[1] We are confronted at the outset of the consideration of this appeal with the contention of appellee, that the instruction, to the giving of which appellant complains, is not in the record. From an examination of the record, we think there has been a substantial compliance with section 2-2010, Burns' 1933, section 343, Baldwin's Ind.St. 1934, as amended by Acts 1935, chap. 211, p. 1015, and that the instruction is in the record. The record also shows that the instruction and exception thereto were brought into the record by the original bill of exceptions, which is incorporated in the record and certified by the clerk. Spurlock v. State, 1916, 185 Ind. 638, 114 N.E. 209;Brewster v. State, 1917, 186 Ind. 369, 115 N. E. 54;Miller v. Berne Hardware Co., 1917, 64 Ind.App. 473, 116 N.E. 54.

[2] The double indemnity clause contained in the policy, on which appellant predicates his right of recovery, is in the following language: “The Double Indemnity will be payable upon receipt of due proof that the Insured died as a direct result of bodily injury effected solely through external, violent, and accidental means, independently and exclusively of all other causes, and of which, except in the case of drowning or asphyxiation, there is evidence by a visible contusion or wound on the exterior of the body, and that such death occurred within ninety days after the date of such injury; provided that the Double Indemnity shall not be payable if death resulted from self-destruction, whether sane or insane, or from military or naval service in time of war, or from any act incident to war, or from engaging in riot or insurrection, or from committing an assault or felony, or from participation in aeronautics, or directly or indirectly from disease or bodily or mental infirmity.” “The burden was on the appellee to allege and prove in his complaint a right to recover under the policy sued on.” Prudential Ins. Co. v. Sanders, 1930, 92 Ind.App. 221, 173 N.E. 236, 237.

[3] The parties hereto agree, that the courts of this state are committed to the doctrine that there is a distinction in law between accidental means and accidental result, as announced in the cases of Husbands v. Indiana, etc., Accident Ass'n, 1921, 194 Ind. 586, 133 N.E. 130, 35 A.L.R. 1184;Schmid v. Indiana, etc., Accident Ass'n, 1908, 42 Ind.App. 483, 85 N.E. 1032;Landress v. Phoenix Mutual Life Ins. Co., 1934, 291 U.S. 491, 54 S.Ct. 461, 78 L.Ed. 934, 90 A.L.R. 1382. That is to say, that the result though unexpected is not an accident within the meaning of the double indemnity clause of the policy here sued upon requiring death to be a “direct result of bodily injury, effected solely through external, violent and accidental means independently and exclusively of all other causes.” The means or cause must be accidental. If the death resulted from voluntary physical exertion or from intentional acts on the part of the insured, it was not accidental and not within the meaning of the terms of the policy under consideration. Or stated in another way, “If the result is such as follows from ordinary means, voluntarily employed, in not an unusual or unexpected way, it cannot be called a result by accidental means. But, if in the act which precedes the injury, something unforeseen, unexpected, unusual, occurs which produces the injury, then the injury has resulted through accidental means.” Schmid v. Indiana, etc., Accident Ass'n, supra (85 N.E. page 1034).

[4] In passing upon a motion for a peremptory instruction, it is the duty of the trial court to accept as true all facts which the evidence tends to prove, and, as against the party requesting such instruction, must draw all inferences which the jury might reasonably draw. If the evidence is conflicting, it is only the evidence which is favorable to the party against whom the instruction is asked that can be considered.“ Johnson v. Western, etc., Co., 1923, 81 Ind. App. 79, 140 N.E. 559, 560;

[15 N.E.2d 102]

Lorber v. People's Motor Coach Co., 1929, 89 Ind.App. 139, 172 N.E. 526;Farmers & Merchants Bank v. Peoples, etc., Bank, 1936, 101 Ind. App. 474, 199 N.E. 892.

[5] While the language used by both our Supreme Court and this court in some of their decisions might not appear to be in complete accord, we think that it can be safely asserted, that it is the purpose of our courts to adhere to the rule that for the purpose of proving a cause of action, an inference cannot be built upon another inference. Young v. Montgomery, 1903, 161 Ind. 68, 67 N.E. 684;Alexander v. Capitol Lumber Co., 1914, 181 Ind. 527, 105 N.E. 45;Morgan Construction Co. v. Dulin, 1915, 184 Ind. 652, 109 N.E. 960;United States Cement Co. v. Whitted, 1910, 46 Ind.App. 105, 90 N.E. 481;Pittsburgh C. C. & St. L. Ry. Co. v....

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