Railway Mail Ass'n v. Schrader
| Decision Date | 21 March 1939 |
| Docket Number | 16070. |
| Citation | 19 N.E.2d 887,107 Ind.App. 235 |
| Parties | RAILWAY MAIL ASS'N v. SCHRADER. |
| Court | Indiana Appellate Court |
Wiles Springer & Roots, of Connersville, and Paul Brown, of New Castle, for appellant.
Pence O'Neill & Divan and Chas. B. Salyer, all of Anderson and Scotten & Hinshaw, of New Castle, for appellee.
This is an action instituted by appellee, Lora E. Schrader, against appellant, Railway Mail Association, to recover an "accidental death benefit" under a "beneficiary department certificate," hereinafter called "policy", issued by appellant, a fraternal beneficiary association, to William C. Schrader, appellee's husband, who died June 2, 1932.
It would serve no good purpose to discuss the pleadings. The cause was submitted to a jury for trial and the jury returned a verdict for appellee, plaintiff below, in the amount prayed for in the complaint. Judgment was rendered upon the verdict.
The overruling of a motion for new trial, which was filed by appellant, is assigned as the only error upon appeal.
The causes for new trial contained in the motion therefor are: (1) the verdict is not sustained by sufficient evidence, (2) the verdict is contrary to law, (3) contended error in refusing to give a peremptory instruction to find for defendant, (4) contended error in giving each of several instructions, (5) contended error in refusing to give each of several instructions.
Substantially the same law question is presented under each of the grounds for new trial numbered 1, 2 and 3 above, and that is the question whether or not, under the evidence in this record, as a matter of law, "disease, defect or bodily infirmity * * * (was) a contributing cause of (decedent's death) * * *" within the meaning of said terms as used in the policy.
The policy provided: (Our italics.)
The evidence shows that decedent was 54 years old at the time of his death; that continuously for more than 20 years prior to the injury which resulted in his death he was a railway mail clerk; that during that period of time he lost only two days' work on account of sickness or disability and said two days' loss occurred about two years prior to his death; that he was at all times of a cheerful and sociable disposition and never complained of pain or suffering prior to said injury.
On May 14, 1932, he and his adult son were engaged in removing the bath fixtures in the bathroom of his home preparatory to laying new linoleum on the floor and while attempting to carry the bath tub through the door, he carrying it at one end and his son at the other end, decedent slipped and fell over and against the tub.
Immediately following the injury and continuously until his death, which occurred June 2, 1932, eighteen days later, decedent suffered severe pains in his chest, abdomen and side; he was weak, suffered from dizziness and cold sweats; and on account of pain and weakness was unable to sit or stand erect.
Within four days after the injury he was passing old blood through his bowels. On May 26th he vomited large quantities of blood. He continued to vomit large quantities until May 28th when an operation was performed upon him and it was ascertained that he had suffered a hemorrhage of the stomach at a place where there was a gastric ulcer. He contracted post-operative pneumonia shortly after the operation and died June 2, 1932, the pneumonia being the immediate cause of his death. Apparently he was recovering from the operation when the pneumonia set it.
The evidence shows further that the injury caused the hemorrhage; that without the injury there would not have been a hemorrhage; and that the ulcer would have yielded to treatment. The existence of the ulcer was unknown to the insured before the operation.
Appellant admits that under the rule laid down by our Supreme Court in Continental Casualty Co. v. Lloyd, 1905, 165 Ind. 52, 73 N.E. 824, the verdict of the jury would be sustained by the evidence if the policy did not contain the express clause, "There shall be no liability whatever when disease, defect or bodily infirmity is a contributing cause of death", but appellant contends that said clause being in the policy, the verdict of the jury is not sustained by the evidence, and the verdict is contrary to law, and the court erred in refusing to give the peremptory instruction for defendant. As following Continental Casualty Co. v. Lloyd, supra, see Inter-Ocean Casualty Co. v. Wilkins, 1932, 96 Ind.App. 231, 182 N.E. 252.
Appellant has cited several Indiana cases involving accident insurance wherein the decision was based upon clauses in accident insurance policies which clauses are similar in effect to the clause relied on here, but in none of said cases were the facts similar to the facts in the instant case. We have searched for but have not found such an Indiana authority. In this connection see Sharpe v. Commercial Travelers' Mutual Accident Ass'n of America, 1894, 139 Ind. 92, 37 N.E. 353.
Appellant has cited several foreign cases wherein a distinction is made between accident insurance policies which contain such further provisos, in effect that "there shall be no liability whatever when disease, defect or bodily infirmity is a contributing cause of death * * *",--and such policies which do not contain such further proviso. See Fidelity & Casualty Co. v. Meyer, 1912, 106 Ark. 91, 152 S.W. 995, 44 L.R.A.,N.S., 493; Korff v. Travelers Insurance Co., 7 Cir., 1936, 83 F.2d 45; Ewing v. Equitable Life Assurance Society of United States, 1936, 320 Pa. 577, 182 A. 369; Kelley v. Pittsburgh Casualty Co., 1917, 256 Pa. 1, 100 A. 494; Patterson v. Ocean Accident & Guarantee Corp., 1905, 25 App.D.C. 46. Appellant has also cited some foreign cases which indicate that the decisions were based primarily on such further provisos. See Korff v. Travelers Insurance Co., 7 Cir. 1936, 83 F.2d 45, supra; White v. Standard Life & Accident Ins. Co., 1905, 95 Minn. 77, 103 N.W. 735, 884, 5 Ann.Cas. 83; National Masonic Accident Ass'n v. Shryock, 8 Cir., 1896, 73 F. 774; Fidelity & Casualty Co. v. Meyer, supra.
In none of the cases cited by appellant are the facts more similar to the case before us than in Silverstein v. Metropolitan Life Ins. Co., 1930, 254 N.Y. 81, 171 N.E. 914, opinion by Cardozo, C. J. We quote from the opinion as follows:
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