Robinson v. Nat'l Life & Accident Ins. Co.

• Decision Date: 04 February 1921
• Docket Number: No. 10681.,10681.
• Citation: 129 N.E. 707,76 Ind.App. 161
• Court: Indiana Appellate Court
• Parties: ROBINSON v. NATIONAL LIFE & ACCIDENT INS. CO.

76 Ind.App. 161

129 N.E. 707

ROBINSON

v.NATIONAL LIFE & ACCIDENT INS. CO.

No. 10681.

Appellate Court of Indiana, Division No. 2.

Feb. 4, 1921.

Appeal from Superior Court, Marion County; Theop. J. Moll, Judge.

Action by Sallie Robinson against the National Life & Accident Insurance Company. Judgment for defendant, and plaintiff appeals. Reversed, with instructions to the trial court to restate its conclusions of law in favor of the plaintiff and to render judgment against the defendant.

John W. Holtzman and John J. Kelly, both of Indianapolis, for appellant.

John H. Rader and James W. Noel, both of Indianapolis, for appellee.

NICHOLS, J.

Action by appellant against appellee on an accident insurance policy to recover $500 for the death of her husband.

The errors relied upon for reversal are that the court erred in its conclusions of law on its special finding of facts, and that the court erred in its first and second conclusions of law respectively.

It appears by the special finding of facts that on October 20, 1915, appellee delivered to appellant's decedent the policy of insurance by the terms of which appellee insured appellant against the loss of life, limb, sight, speech, and hearing resulting directly and independently of all other causes from bodily injury which is effected through accidental, external, and violent means, in the initial principal sum of $500, with a weekly indemnity of $12.50. Such policy continued in force and effect until February 17, 1918, the date of the decedent's death. On December 11, 1917, the insured suffered a bodily injury by external, violent means which consisted of a violent fall directly causing a compound fracture of the left femur at or near the junction of the lower middle third thereof, the injury being such as would cause his left leg to hang limp from his body. He received attention within a half hour and was transported to the city hospital of Springfield, Ohio, where his leg was later diligently treated, and properly set and placed in a temporary splint. On the same night he was brought to Indianapolis and taken to the city hospital, where he received treatment by a competent railway surgeon upon whose advice he was moved to his home. The fracture continued to heal in a normal manner, the leg being in a case, without any complications whatever until February 2, 1918, when it was observed that the insured had lobar pneumonia. At the time of his injury the insured was a strong and able-bodied man in good health and physical condition. The fracture ran the usual course of such injuries and temporarily there was a good union. After said injury the insured experienced a general decline in strength and became greatly emaciated. He was confined to his bed from the time of receiving the injury until he died. His decline and emaciation was caused by such fracture and by being confined to bed for such a length of time. On account of his depleted and weakened condition his resistance to disease was lowered, and he was rendered more susceptible to pneumococcus germs than if he had not been injured. Said pneumonia was neither traumatic nor septic, but was caused by infection with pneumococcus germs, and it eventually resulted in his death. The pneumonia was the natural sequence to his condition resulting from the injury which he received as aforesaid. During the course of said pneumonia, the osseous tissue which held the broken parts of the femur bone together dissolved and the broken parts pulled loose and again allowed his leg to hang limp from his body. He died February 17, 1918. The immediate cause of his death was said lobar pneumonia. The death resulted within 90 days from the date of the accident. The injury aforesaid depleted the physical strength of said decedent and he was thereby rendered more susceptible to pneumonia. During the course of his confinement on account of said injury he was infected with pneumonia and his physical strength was unable to resist said pneumonia, and as a natural, probable, direct, and immediate result of his said injury and pneumonia, he died. He received from appellee a weekly indemnity of $12.50 until February 13, when he was thereafter paid a sick benefit at the rate of $12.50 being up to the time of his death, $8.90 for the last week.

On these facts the court stated conclusions of law that appellant is not entitled to recover anything against appellee and that appellee was entitled to recover its costs.

There was an exception to each of the conclusions of law. Judgment was rendered against appellant in harmony with the conclusions of law, from which this appeal is prosecuted.

It is to be observed by the court's special finding that at the time of the injury the insured was a strong and able-bodied man in good health and physical condition, and that after such injury the insured experienced a general decline in strength and became greatly emaciated. Because of such fracture he was confined to his bed from the date of the injury until he died, which resulted in his decline and emaciation, and that because of his depleted and weakened condition, produced as aforesaid, his resistance to disease was lowered and he was rendered the more susceptible to the pneumococcus germs than if he had not been injured, and that the pneumonia preceding his death was the natural consequence of his condition resulting from the injury. It is a well-known fact of medical science that pneumococcus germs are generally present in the respiratory tract of healthy bodies, but that they are innocuous because of the resisting power of such healthy body, and become active only when the lung tissues are so debilitated as to be unable to resist their attack. If the vital resistance has suffered, as by disease or emaciation, the attack of the germs is facilitated and pneumonia is more readily produced. McFarland's Pathogenic Bacteria and Protozoa (8th Ed.) 445; Strumpell, vol. 1, 242. From this we readily conclude that the pneumonia of the insured was not the result of an accidental contagion, but of the activity of the pneumococcus germs, ever present, upon the lung tissue which had been weakened as a result of the injury.

It is contended by appellee that the death of the assured did not result directly and independently of all other causes from the bodily injury, but that it was the direct and immediate result of the sum of two causes, namely, his said injury and pneumonia. Appellee's counsel forcefully present this contention and support it by numerous authorities, but we are not in harmony therewith. We do not view the pneumonia as one of two independent causes, the sum of which produced the death of the insured, but rather as one of the links in the chain of causation, and that the accident and the injury resulting therefrom is the proximate cause.

In Driskell v. U. S. Health & Accident Ins. Co., 117 Mo. App. 362, 93 S. W. 880, the provision in the policy was “if death should result solely from such injuries,” and ...