Pearlman v. Massachusetts Bonding & Ins. Co.

• Decision Date: 17 November 1955
• Docket Number: No. 18684,18684
• Citation: 126 Ind.App. 294,130 N.E.2d 54
• Parties: Louis Henry PEARLMAN, Appellant, v. MASSACHUSETTS BONDING AND INSURANCE COMPANY, Appellee.
• Court: Indiana Appellate Court

Page 54

130 N.E.2d 54

126 Ind.App. 294

Louis Henry PEARLMAN, Appellant, v.MASSACHUSETTS BONDING AND INSURANCE COMPANY, Appellee.

No. 18684.

Appellate Court of Indiana, In Banc.

Nov. 17, 1955.

Michael L. Fansler, Bernard Stroyman, Indianapolis, for appellant.

Burke G. Slaymaker, Slaymaker, Locke & Reynolds, Indianapolis, for appellee.

ROYSE, Judge.

This was an action by appellant, a dentist, for indemnity under a Health and Accident Insurance Policy issued to him by appelleeJanuary 21, 1934.

Appellee's demurrer to appellant's fourth amended complaint was sustained.Appellant refused to plead further and judgment was rendered in favor of appellee.The error assigned here is that the trial court erred in sustaining said demurrer.

The complaint alleged appellant was for a period of thirty-seven years engaged in the practice of his profession as a dentist; that appellee, on January 21, 1934, in consideration of the premium provided, executed and delivered its policy of insurance to appellant whereby it insured him against the effects 'resulting directly and exclusively of all other causes, from bodily injury sustained during the life of this policy solely through External, Violent and Accidental Means * * *.That if such injury alone shall within five days from date of the accident wholly and continuously disable plaintiff from performing any and every duty pertaining to his occupation, it (the defendant) will pay', etc.

The complaint then avers:

'4.On April 16, 1952, while said policy of insurance was in full force and effect, plaintiff's thumbs and index fingers became and were ulcerated and malignant, necessitating the amputation of a portion of his right thumb, and resulting in the total paralysis of his right index finger and partial paralysis of his left index finger.Such ulceration and malignancy resulted directly and exclusively of all other causes from a bodily injury sustained solely through External, Violent and Accidental Means, within the meaning of such terms as used in said insurance policy, to-wit, burns caused by plaintiff's accidental exposure to overdoses of X-ray while using an X-ray machine in the practice of his profession as a dentist.Plaintiff does not know the date or dates of such exposure to over-doses, or the extent thereof and therefore cannot allege the same.(Our emphasis).Said exposure to overdoses and the consequent X-ray burns which produced plaintiff's injury, as aforesaid, were unintentional, unusual, unforseen and unexpected.(Appellant's emphasis).Plaintiff has used an X-ray machine in the practice of his said profession almost daily, until he became disabled, as stated hereinafter, for approximately thirty years, the exact number whereof he does not now remember.

'5.Said injury alone within five days from date of the accident, April 16, 1952, wholly and continuously disabled plaintiff from performing any and every duty pertaining to the practice of his profession as a dentist, and it will so wholly and continuously disable plaintiff, permanently.'

This is followed by averments that appellant paid all premiums due, did and performed all conditions imposed on him; that appellee denied liability and refused to pay his claim for disability caused by accidental means on the grounds his disability was the result of an illness and therefore governed by the illness provision of said policy, and mailed appellant check in the sum of $156.67 in full of his claim, which payment he refused.

This appeal presents two questions: (1) Does the fourth amended complaint allege facts which show the permanent total disability of appellant resulted from a bodily injury sustained during the life of the policy by accidental means?Appellee asserts that it does not.(2) Does the said amended complaint allege facts which show that such disability resulted within five days from the date of the accident?Appellee asserts that it does not.

The first question has been before this court, our Supreme Court, and the appellate courts of other jurisdictions many times.While there is a sharp conflict in the decisions it seems clear to us the rule is well established in this state 'that where an unusual or unexpected injury occurs by reason of the doing by the insured of an intentional act, where no mischance, slip or mishap occurs in doing the act itself, the ensuing injury is not caused by accidental means, but that it must appear that the means used were accidental, and it is not enough that the result may be unusual, unexpected or unforeseen'.(Our emphasis).(We therefore limit our consideration of the authorities to those from this state).Our decisions assert this is the majority rule.But, as is frequently the case, our courts have had more difficulty in applying the rule than in stating it.

In the case of Husbands v. Indiana Travelers' Accident Ass'n, 1924, 194 Ind. 586, 133 N.E. 130, 133, 35 A.L.R. 1184, the husband of appellant ruptured a blood vessel in his lung while shaking down the furnace in his home.This caused his immediate death.The Supreme Court, speaking through Judge Ewbank, reviewed many of the cases of that court and of this court on this question.In affirming the decision of the trial court denying indemnity under provisions of an insurance policy similar to those in this case, the Supreme Court said:

'And the facts found fail to show that the insured slipped or stumbled, or that anything fell upon or against him, or that anything whatever that was unforeseen or not intended happened to him of an 'external violent' nature, or that he met with an 'accident' of any kind, except that his exertion in shaking down the ashes in his furnace ruptured a blood vessel weakened by disease, which he did not intend or expect...