Schmid v. Indiana Travelers' Accident Ass'n

• Decision Date: 17 November 1908
• Docket Number: No. 6,454.,6,454.
• Citation: 42 Ind.App. 483,85 N.E. 1032
• Parties: SCHMID v. INDIANA TRAVELERS' ACCIDENT ASS'N.
• Court: Indiana Appellate Court

42 Ind.App. 483

85 N.E. 1032

SCHMID

v.INDIANA TRAVELERS' ACCIDENT ASS'N.

No. 6,454.

Appellate Court of Indiana, Division No. 2.

Nov. 17, 1908.

Appeal from Superior Court, Marion County; Vinson Carter, Judge.

Action by Matilda Schmid, guardian, against the Indiana Travelers' Accident Association. From a judgment for defendant on sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

Wilson & Townley, for appellant. McMaster & Hedrick and Scott & Scott, for appellee.

COMSTOCK, J.

Action by appellant against appellee upon a contract of insurance issued by appellee to one B. Frank Schmid, in which appellee agreed, with certain exceptions, that should the said Schmid sustain a physical bodily injury through external, violent, and accidental means, which injury should result in death, appellee would be liable to Schmid's beneficiaries in a certain sum.

Appellant in her complaint sets out Schmid's death, and the cause thereof, together with certain facts and circumstances connected therewith, and claimed that such death, upon the showing of such allegations, was a death from injuries sustained through external, violent, and accidental means, and that appellee was liable therefor under the terms of its contract. Appellee demurred to said complaint upon the ground that the same did not state facts sufficient to constitute a cause of action, which demurrer the court sustained, and, appellant refusing to plead further, judgment was rendered against her for costs. The correctness of the ruling of the court is the only error assigned.

The policy, together with the application and by-laws of the association, which are made a part thereof, are set forth as exhibits to the complaint. So far as material to the solution of the legal questions presented, the provisions of such policy are as follows: “No claims of any character shall ever accrue upon this contract, unless it arises from physical bodily injury, through external, violent and accidental means, while this contract is in force, and then only when the injury shall, independently of all other causes, immediately and wholly disable the insured from performing any and every kind of business pertaining to his occupation as above stated.” “This certificate of insurance does not cover injuries nor death, for which there is no visible mark upon the body of the insured; nor death or injury from any of the following causes: disease or bodily infirmity, or acts committed by the insured, while under mental aberration, fits, insanity, rupture, vertigo, walking in sleep, narcotics, intoxication, surgical treatment, sunstroke, freezing, voluntarily taking poison, handling or using dynamite or other explosives, riots or war, quarreling, dueling, wrestling, fighting, gymnastic sports, voluntary exposure to unnecessary danger, injury resulting from the intentional act of the insured or other persons, or received while engaged in any unlawful act, or while in any gambling house, or house of ill-fame, or house of assignation, or any place prohibited by law; nor shall it cover suicide, whether the person is sane or insane.”

The following are the allegations of the complaint with reference to the manner of Schmid's death: “The plaintiff further says that on or about the 27th day of December, 1905, while said policy was in full force and effect, the said B. Frank Schmid was killed by external, violent, and accidental means, in the manner following: That up to and prior to said date last named, and for a long time anterior thereto, the said B. Frank Schmid was a resident of the city of Indianapolis, and a citizen of, and domiciled in, the state of Indiana; that said city last named is located about 700 feet above sea level; that a few days prior to said 27th day of December, 1905, said Schmid left the said city of Indianapolis, on a journey to the city of Colorado Springs, in the state of Colorado, on business, and traveled directly from said city of Indianapolis, by railway, to said Colorado Springs; that said city of Colorado Springs is about 6,000 feet above the sea level; that said journey covered - hours, and was tedious and confining; that said Schmid at the time was over 50 years of age; that said Schmid arrived at said Colorado Springs on the evening of December 27, 1905; that he left the railway station, carrying in each hand from the train a traveling bag or satchel; that he went directly to the Antlers Hotel in said city of Colorado Springs, said hotel being located on a promontory in said city; that said Schmid, in going to said hotel from the train and station, ascended a hundred flights of steps leading to said hotel, being the usual method of approach by pedestrians; that he walked from the top of said steps into the lobby of said Antlers Hotel; that immediately on entering the hotel he fell suddenly forward to the floor, and expired in a few moments; that the death of said Schmid was due to the circulatory failure and paralysis of the heart, caused by the high altitude and unusual strain on the heart, occasioned by the muscular exertion in climbing said steps, under such circumstances, in such a rarified atmosphere. Plaintiff further says that said circulatory failure and paralysis of the heart, which resulted in Schmid's death, would not have occurred under ordinary circumstances; that said Schmid's heart was sound to the extent that it would have proved adequate and sufficient, under ordinary circumstances, for many years, but said circulatory failure and paralysis of the heart was caused solely by the unusual and extraordinary strain to which it was subjected, as a result of the climbing said steps while carrying said bag or satchel, which was of considerable weight, combined with the effect of such rarified atmosphere, to which said Schmid was unaccustomed. Plaintiff further says that upon the occurrence of said circulatory failure or paralysis of the heart as aforesaid, and prior to his death, there appeared upon the face of Schmid a marked and unusual pallor, and thereupon said Schmid fell, as aforesaid, to the floor of said hotel; that in falling said Schmid struck his head violently against said floor, causing a cut or laceration upon his forehead; that the death of said Schmid occurred several moments after said fall; that said fall, and the violent striking of his head against the floor, as aforesaid, contributed to cause his death; that said death resulted from the combined effect of circulatory failure or paralysis of the heart, and the violent striking of his head against said floor, as the result of said fall, as hereinbefore set forth.” It is further alleged that timely and due notice of and the particulars of Schmid's death were given, and that appellee denied liability;that the beneficiaries named in the policy were the minor children of said Schmid, and that appellant is their guardian.

The question for determination is whether the death of Schmid was the result of accidental means within the provision of the policy.

It is claimed by appellant that where “the performance of intentional acts is followed by a result which is not the natural and probable consequence of those acts; where the result is altogether out of the ordinary, and could not reasonably have been anticipated or expected-such a result is regarded as having taken place by accidental means; that the present case is clearly one of the latter class; that Schmid's death resulted from heart paralysis, occasioned by a strain upon the heart, which was the altogether unusual and unexpected result of muscular exertion, under the circumstances described in the complaint; that neither the strain upon the heart, nor heart paralysis, was the natural or probable consequence of such exertion; that such results could not reasonably have been anticipated or expected-hence the death must be regarded as accidental.” Horsfall v. Pacific, etc., Co., 32 Wash. 132, 72 Pac. 1028, 63 L. R. A. 425, 98 Am. St. Rep. 846;Rustin v. Standard, etc., Co., 58 Neb. 792, 79 N. W. 712, 46 L. R. A. 253, 76 Am. St. Rep. 136; Martin v. Travelers' Ins. Co., 1 F. & F. 505; Atlantic Ass'n v. Alexander, 104 Ga. 709, 30 S. E. 939, 42 L. R. A. 188;Rodey v. Travelers' Ins. Co., 3 N. M. 316, 9 Pac. 348;Miller v. Fidelity, etc., Co. (C. C.) 97 Fed. 836;Western Ass'n v. Smith, 85 Fed. 401, 29 C. C. A. 223, 40 L. R. A. 653;United States Mutual Ass'n v. Barry, 131 U. S. 100, 9 Sup. Ct. 755, 33 L. Ed. 60;Bailey v. Interstate Co. (Sup.) 40 N. Y. Supp. 513;American Co. v. Reigart, 94 Ky. 547, 23 S. W. 191, 21 L. R. A. 651, 42 Am. St. Rep. 374; Hamlyn v. Crown (1893) 1 Q. B. 750.

In the first case above mentioned, the insured in lifting a weight, while in a difficult position, strained the muscles of his heart, causing a violent dilation of the heart, from which he died. The court held that the injury was the result of an accident within the meaning of the policy. This holding is based on the reason stated as follows: “The policy insured the deceased against the effect of bodily injuries caused solely by external, violent, and accidental means. Death by accident is defined to be ‘death from any unanticipated event which happens by chance, or which does not take place according to the usual course of things.’ So a strain of the muscles of the back, caused by lifting heavy weights in the usual course of business, is an injury by accident or violence, ‘occasioned by external or material causes operating on the person of the insured.’ 2 May on Ins. (4th Ed.) § 514; U. S. Ass'n v. Barry, 131 U. S. 100, 9 Sup. Ct. 755, 33 L. Ed. 60;North Am., etc., Ins. Co. v. Burroughs, 69 Pa. 51, 8 Am. Rep. 212; 1 Cyc. 248, and cases cited.”

May in his work on Insurance, supra, in his definition of the word “accident,” fails to make any distinction between an accident and a result by accidental means.

In the Barry Case, supra, the court said: “That if a result is such as follows from ordinary means, voluntarily employed, in not an...