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

• Decision Date: 06 March 1939
• Docket Number: 27201.
• Citation: 19 N.E.2d 547,215 Ind. 305
• Parties: OREY v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: Indiana Supreme Court

19 N.E.2d 547

215 Ind. 305

OREY v. MUTUAL LIFE INS. CO. OF NEW YORK.

No. 27201.

Supreme Court of Indiana

March 6, 1939

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

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

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

FANSLER Judge.

The appellant was the beneficiary of a life insurance policy upon the life of Leo J. Orey, and brought this action to recover double indemnity under the policy on the theory that the death of the insured resulted from bodily injuries within the terms of the double indemnity clause of the policy. At the conclusion of the plaintiff's evidence the jury returned a verdict for the defendant, pursuant to a peremptory instruction given by the court at the request of the defendant. The plaintiff specified the giving of this instruction as cause for a new trial, and the motion was overruled. The ruling is the basis of the only error assigned.

The double indemnity clause contained in the policy, upon which appellant predicates his right to recovery, is as follows '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 parties agree that there is a distinction between accidental means and accidental result; that a result different from one expected is not accidental within the meaning of the double indemnity clause if it is the result of voluntary intentional acts upon the part of the insured.

In determining whether a peremptory instruction should be given, it is the duty of the court to consider only that evidence which is favorable to the party against whom the instruction is asked, and unless all of such evidence, together with all inferences which might reasonably be drawn therefrom, is insufficient to support a verdict, the peremptory instruction should not be given.

In order for the plaintiff to recover it was necessary that he prove that Leo J. Orey '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 * * * there is evidence by a visible contusion or wound on the exterior of the body,' and that his death did not result 'directly or indirectly from disease or bodily or mental infirmity.'

The evidence establishes that the deceased was a strong muscular, and healthy young man, about 22 years of age; that he was employed in driving a lumber truck; that on the morning of December 11, 1928, he was driving his truck loaded with lumber, and when going up a hill on a dirt road the truck for some reason stopped and backed up for some little distance. He was seen in the road around and beside the truck, and then seen going up the road toward the village. He came to the village store, obviously very sick, and announced that he was dying, and was taken to a doctor's office, where it was found that he had a scrotal strangulated hernia. Various witnesses testified that the protrusion was as big as a quart cup, or two fists, or a one-half gallon bucket. He was taken to a hospital and died of the hernia. There was evidence that his overalls were torn; that he had clay and dirt on...