Werner v. State Life Ins. Co. of Indianapolis
| Decision Date | 05 March 1937 |
| Docket Number | 15321. |
| Citation | 6 N.E.2d 786,104 Ind.App. 27 |
| Parties | WERNER v. STATE LIFE INS. CO. OF INDIANAPOLIS. |
| Court | Indiana Appellate Court |
Fenton Steers, Beasley & Klee, of Indianapolis (Arthur J Sullivan, of Indianapolis, of counsel), for appellant.
Charles F. Coffin, Milton W. Mangus, and Joseph A. McGowan, all of Indianapolis, for appellee.
This is an appeal from a judgment for appellee (defendant below) in a suit instituted by appellant, the beneficiary of two life insurance policies issued by appellee, to recover on the double indemnity provision of the policies.
The complaint was in two paragraphs, one for each policy. The paragraphs were identical except as to the amounts of insurance provided by the respective policies. A demurrer to each of said paragraphs of complaint was filed and sustained and appellant declining to plead further, judgment was rendered in favor of appellee. On appeal the sole error relied upon for reversal is alleged error in sustaining each of said demurrers.
The policies were dated February 16, 1921. They contained an "incontestability clause" which provided that the policy "shall be incontestable after one year from date hereof, except for nonpayment of premiums."
The double indemnity clause of the policies was as follows:
"During the premium paying period of this policy, and excluding any time while the same may be in force as extended insurance all premiums having been duly paid, and this Policy being then in force, in the event of the death of the insured, resulting from bodily injury, sustained and effected directly through external, violent and accidental means (murder or suicide, sane or insane, not included), exclusively and independently of all other causes, provided such death shall occur within ninety (90) days from the date of the accident, the Company will pay to the beneficiary or beneficiaries hereunder, in addition to the amount otherwise due, under this Policy. ***" (Our italics.)
The complaint alleged, among other things, "*** that on or about the 4th day of August, 1932, and while said policy was in full force and effect, and there being no indebtedness due on said policy in favor of the defendent, the insured, Jacob Werner, died as the result of bodily injuries sustained and effected directly through external, violent, and accidental means, and not by murder or suicide, exclusively and independently of all other causes, in the following manner to-wit: that on the 2nd day of August, 1932, said insured, while in his office and place of business as a pawn broker at 234 Indiana Avenue, in the city of Indianapolis, Indiana, all without any fault or provocation on his part, was held up, beaten about the head and body and robbed and shot by a gun, through the epigastrium, transverse colon, duodenum and abdominal wall, from all of which injuries he died from gunshot wounds two days later, to-wit, on the 4th day of August, 1932, at the Riley Hospital in the city of Indianapolis, Indiana."
Appellant's points may be summarized as follows:
(1) The facts alleged in the complaint show that the insured's death "resulted from bodily injury, sustained and effected through external, violent and accidental means" within the meaning of said terms as expressed in said double indemnity clause.
Stated adversely, appellant contends that the facts alleged in the complaint do not show that insured's death resulted from "murder or suicide, sane or insane," within the meaning of said terms as expressed in said double indemnity clause.
(2) Regardless of whether or not insured's death is shown by the allegations of the complaint to come within the provisions, or exceptions to the provisions of said double indemnity clause, the incontestability clause and section 39-801, par. 3, Burns' 1933, permits a recovery on the policies, they having been in force more than two years at the time of insured's death, and premiums being fully paid at that time.
Section 39-801, par. 3, Burns' 1933, supra, provides:
It will be readily seen that the policies in the instant case complied with the provisions of section 39-801, Burns' 1933, section 9723 Baldwin's Ind.St.1934, supra, in so far as contestability for nonpayment of premiums is concerned.
We will first discuss the contention that insured's death, as alleged in the complaint, was covered by the double indemnity clause, and was not excluded by the exceptions to the provisions of the double indemnity clause.
Appellant states sixteen points in support of said contention, the first fifteen of which support the proposition that where an insured is murdered without fault or provocation on his part, his death is "accidental" within the meaning of insurance policies covering accidental death. Many cases are cited in support of said points, including the following Indiana authorities: Supreme Council, etc., v. Garrigus (1885) 104 Ind. 133, 3 N.W. 818, 54 Am. Rep. 298; Ph nix Acc. & Sick Benefit Ass'n v. Stiver (1908) 42 Ind.App. 636, 84 N.E. 772; Travelers' Protective Ass'n v. Fawcett, G'd'n (1914) 56 Ind.App. 111, 104 N.E. 991.
We agree with said proposition, but if it be assumed that insured's death was an "accidental" death, which we do not decide, we must still determine whether it was excluded as a risk. (See Barham v. State Life Insurance Co., 17 La.App. 253, 135 So. 730, 731, where the court was discussing the identical double indemnity provision involved here, where the court said:
"The meaning of the exception of murder and suicide is that if death was caused by accidental means, it was liable except where death was caused by suicide or murder.")
Appellant's sixteenth point is "when an insurance contract contains conflicting provisions, or is otherwise ambiguous, it will be strictly construed against the insurer and that construction will be adopted which will sustain rather than defeat the purpose of the contract, if it can be done without doing violence to the language used when fairly construed in the light of the situation of the parties." Appellant cites Masonic Acc. Ins. Co. v. Jackson (1929) 200 Ind. 472, 164 N.E. 628, 61 A.L.R. 840; Fletcher Savings & Trust Co. v. American Surety Co. (1931) 92 Ind.App. 651, 175 N.E. 247, in support of said point.
We recognize said rules of construction, but they are not applicable here.
We hold that the policies in the instant case expressly and clearly exclude death by murder from the risks covered by the double indemnity clause. The facts alleged as to insured's death constituted murder, within the meaning of the statutes in effect when the policy was issued (Feb. 16, 1921), section 347, chap. 169, Acts 1905 (page 660), and within the meaning of the statutes in effect at the time when insured was killed August 4, 1932, section 4, chap. 54, Acts 1929 (page 137). Therefore we hold that the complaint alleges facts which show that insured's death was not covered by the double indemnity provision of the policies.
Appellant has cited numerous authorities in support of the contention that the incontestability clause and section 39-801, Burns' 1933, section 9723, Baldwin's Ind.St.1934, supra, permits a recovery on the policy in spite of the exceptions in the double indemnity clause "murder or suicide, sane or insane, not included."
Some of them are cases in which the court was considering the effect of incontestability clauses, with reference to preventing contests as to facts existing at the time the respective policies were issued, and where the Appellate Court used broad language, to the effect that the incontestability clauses cut off "all" defenses. One of such cases is Indiana Nat'l Life Ins. Co. v. McGinnis (1913) 180 Ind. 9, 101 N.E. 289, 291, 45 L.R.A. (N.S.) 192, wherein the court said:
"It seems to be a well-recognized principle of insurance law that a provision in a contract of insurance limiting the time in which the insurer may take advantage of certain facts that might otherwise constitute a good defense to its liability on such contract is valid, and precludes every defense to the policy other than the defenses excepted in the provision itself."
It should be noted that the court in that case was considering the question of whether or not the incontestability clause in the policy before the court prevented a contest by the insurance company on the ground that statements and warranties in the...
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