PhŒnix Accident & Sick Benefit Ass'n v. Stiver

• Decision Date: 15 May 1908
• Docket Number: No. 6,138.,6,138.
• Citation: PhŒnix Accident & Sick Benefit Ass'n v. Stiver, 42 Ind.App. 636, 84 N.E. 772 (Ind. App. 1908)
• Parties: PHŒNIX ACCIDENT & SICK BENEFIT ASS'N v. STIVER.
• Court: Indiana Appellate Court

42 Ind.App. 636

84 N.E. 772

PHŒNIX ACCIDENT & SICK BENEFIT ASS'N

v.STIVER.

No. 6,138.¹

Appellate Court of Indiana.

May 15, 1908.

Appeal from Circuit Court, Randolph County; Jno. W. Macy, Judge.

Action by Eliza Stiver against the Phœnix Accident & Sick Benefit Association. Judgment for plaintiff, and defendant appeals. Affirmed.

James W. Brissey and John E. Ethell, for appellant. Thompson & Thompson, for appellee.

WATSON, J.

Appellee, beneficiary in an accident insurance policy issued to her husband, sued appellant to recover the amount of the policy due by reason of the accidental death of the insured. There was a trial by jury, resulting in a verdict for appellee with damages in the sum of $300, upon which judgment was rendered. The first and third paragraphs of the complaint were withdrawn after the evidence was in, and the case is before this court on the second paragraph alone.

The errors assigned and discussed in the briefs are (1) overruling the demurrer for want of facts to the second paragraph of the complaint; (2) overruling the motion for judgment for appellant on the interrogatories and answers thereto notwithstanding the general verdict; (3) overruling the motion for a new trial, for the reason the trial court submitted to the jury appellee's request for answers along with the interrogatories. The question has been raised as to whether the second paragraph of the complaint and the demurrer thereto are properly before this court for consideration. The contention is that since said paragraph, with the demurrer thereto, was not set out in the copy of the transcript from the Delaware circuit court, from which a change of venue was taken to the Randolph circuit court, no question is presented. The clerk of the Delaware circuit court certified that said transcript contained “full, true, and complete copies of all the papers and entries in said cause.” In the transcript to this court there is a proper order book entry of the filing of the transcript from the Delaware circuit court and a copy of the same, except that the various papers are not set out in full therein. Immediately following, in the transcript submitted for our consideration, is a copy of the complaint and the demurrers to the separate paragraphs thereof, certified to by the clerk of the Randolph circuit court as being “full, true, and complete copies” of the original papers. The latter certification authenticates said proceedings to this court, and hence it is proper to consider said second paragraph. It may be said that no question is raised as to the correctness of the certified copy.

The complaint is attacked for failing to allege facts sufficient to show that the death of the insured was accidental within the meaning of the terms of the policy. The complaint contains a complete copy of the policy. The terms of such policy and the allegations of the complaint material to this question are, in substance, as follows: Appellant insured Henry Stiver, husband of appellee, “against loss of time resulting from bodily injury caused solely and exclusively by external, violent and accidental means, of which there are external and visible marks on the body.” If death should result from such injuries alone within three months from the date of any accident, the association was to pay $300 to Eliza, wife of the insured, if surviving. On August 15, 1904, Henry Stiver was cut and stabbed by one Henry Lowenstein. The cutting and stabbing was without warning to the insured, and without provocation. It occurred on a public highway in Muncie, Delaware county, Ind., while Stiver was walking from the home of one John Langenbach to his own home, and from the effects of which he died. At the time said accident occurred Stiver was engaged in no assault upon Lowenstein, nor in any affray, nor in committing any unlawful act. The assault and stabbing was entirely without warning to the insured, wholly unexpected, unforeseen, and accidental, and without the design or consent of decedent. Lowenstein was at the time insane, and his acts were unintentional. The complaint then specifically denies that the death of the insured was due to any of the causes which, by the terms of the policy, would render the same void.

A definition of death by accidental means within the meaning of accident policies has been clearly enunciated in the case of Ripley v. Railway Passengers' Assurance Co., 20 Fed. Cas. 823 (No. 11,854); 2 Bigelow Ins. Cas. 738. The policy in that case insured against death by accident while traveling by public or private conveyance. The insured was attacked and robbed while walking from a certain town, where he had disembarked from a steamboat, to his home. Death resulted from the injuries received in the attack. It is true that it was not necessary to the decision of the case to define the term accidental death. In fact, the decision rested on the ground that the injuries were not received while traveling as prescribed in the policy, but the doctrine there stated has been generally followed. The court said: “The injuries were effected by violence, but was there any accident? Mr. Webster defines ‘accident’ to be an event that takes place without one's foresight or expectation, an event which proceeds from unknown cause, or an unusual effect of a known cause, and therefore not expected; chance, casualty, contingency, unexpectedly happening by chance, unexpectedly taking place, not according to the usual course of things. Perhaps in a strict sense, any event which is brought about by design of any person is not accident, because that which has accomplished the intention and design, and is expected, is a foreseen and foreknows result, and therefore not strictly accident. Yet I am persuaded this contract should not be interpreted so as thus to limit its meaning, for the event took place unexpectedly, and without design on Ripley's part. It was to him a casualty, and in the more popular and common acceptation of the word ‘accident,’ if not in its precise meaning, includes any event which takes place without the foresight or expectation of the person acted upon or affected by the event. *** I think in construing a policy of insurance against accident, issued to all sorts of people, a majority of whom do not, as the company well know, nicely weigh the meaning of words and terms used in it, courts are called upon to interpret the contract as a large class not versed in lexicology are sure to regard its terms and scope. That which occurs to them unexpectedly is by them called ‘accident.’ The company fix the terms of the contract, and are to be held, in the absence of plain and unequivocal exceptions, to intend what, in popular acceptation, the insured party is likely to understand by its terms.” In the case of American Accident Co. v. Carson, 99 Ky. 441, 36 S. W. 169, 34 L. R. A. 301, 59 Am. St. Rep. 473, one Carson was shot by one Burton intentionally, but without provocation on the part of Carson and unforeseen by him. It was alleged that the shooting was “wanton, causeless, unprovoked, and unexpected by him (Carson).” The question arose on a demurrer to the complaint. The court said: “If, as to the person injured, the injury was unforeseen, unexpected, not brought about through his agency designedly, or was without his foresight, or was a casualty or mishap not intended to befall him, then the occurrence was accidental, and the injury one inflicted by accidental means, within the meaning of such policies.” The case of Lovelace v. Travelers' Protective Ass'n, 126 Mo. 104, 28 S. W. 877, 30 L. R. A. 209, 47 Am. St. Rep. 638, was very similar in its facts to the case at bar. In that case the insured, who was a guest at a hotel, was shot and killed while engaged in a fight caused by his trying to eject from the office of such hotel an unruly and...