42 Ind. App. 636 | Ind. Ct. App. | 1908
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, upon which judgment was rendered in the sum of $300.
The first and third paragraphs of the complaint were withdrawn after the evidence was in, and the ease is before this court on the second paragraph alone.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
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 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.
In the case of American Accident Co., etc., v. Carson (1896), 99 Ky. 441, 36 S. W. 169, 59 Am. St. 473, 34 L. R. A. 301, Carson was shot by 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 Carson. The question arose on a demurrer to the complaint. It is said in the syllabus:
*641 '! 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 is accidental, and the injury one inflicted by accidental means within the meaning of such policy. ’ ’
The case of Lovelace v. Travelers Protective Assn., etc. (1894), 126 Mo. 104, 28 S. W. 877, 47 Am. St. 638, 30 L. R. A. 209, 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 boisterous person who was creating a disturbance. The guest was not requested or authorized by the proprietor of the hotel to eject the unruly one.. The court held that the death of the insured was accidental within the meaning of the policy.
For further cases supporting the doctrine as to what constitutes accident, see, Supreme Council, etc., v. Garrigus (1885), 104 Ind. 133, 54 Am. Rep. 298; Warner v. United States, etc., Accident Assn. (1893), 8 Utah 431, 32 Pac. 696; Richards v. Travelers Ins. Co. (1891), 89 Cal. 170, 26 Pac. 762, 23 Am. St. 455; Accident Ins. Co., etc., v. Bennett (1891), 90 Term. 256, 16 S. W. 723, 25 Am. St. 685; Hutchcraft’s Executor v. Travelers Ins. Co. (1888), 87 Ky. 300, 8 S. W. 570, 12 Am. St. 484; Fidelity & Casualty Co. v. Johnson (1894), 72 Miss. 333, 17 South. 2, 30 L. R. A. 206; Railway Officials, etc., Assn. v. Drummond (1898), 56 Neb. 235, 76 N. W. 562; 1 Am. and Eng. Ency. Law (2d ed.), 294, and notes.
The averments of the complaint allege an event clearly coming within the rule just stated. It is averred that the insured was stabbed by an insane person while he, the insured, was on a public highway, on his way from a neighbor’s premises to his own home; that the stabbing, from which death resulted, was without provocation, 'and wholly
The policy provides that notice of sickness, injury or death, for which a claim is to be made under such policy, shall be given in writing, to the auditor at the home office, Benton Harbor, Michigan, with full particulars. Failure to give such notice within ten days from the date of the injury invalidated all claims under the policy. Further, unless affirmative and final proofs, containing answers under oath to questions in blank furnished by the association, were sent to the association within two months from the date of the death of the insured, all claims based thereon should be forfeited.
The complaint alleges that within ten days after the death of the insured, on or before August 25, 1904, appellee gave to appellant’s auditor at said home office notice and proof of such death; that, though requested to do so by appellee, appellant “wholly and absolutely failed” to furnish blanks for the required final proof. Appellant does not challenge the sufficiency of the notice given, nor contend that it was not given in time. By the terms of the policy final proof of the death of assured was required within two months after his death, but this duty depended upon a prior condition to be performed by appellant, namely, to furnish the proper blanks for such proof. Consequently, if appellant should see fit to refuse or neglect to supply such blanks within the-stipulated time after receiving due notice and proof of the particulars of the death, it has waived the right to insist upon the final proof as a condition precedent to a right to recover on the policy. Covenant Mut. Benefit Assn., etc.,
A fair construction of the averments of the complaint is that by failing to supply blanks for the proper verified final proof waiver was made from the time the notice of death was received. The allegations, therefore, were sufficient. Railway, etc., Assn. v. Armstrong (1899), 22 Ind. App. 406.
Appellant further insists that judgment should have been rendered for .it upon the answers to interrogatories returned by the jury. The complete list of the interrogatories, with the answers thereto, has not been set out in the brief, but only such as are deemed sufficient to support this contention. They' are, in substance, that just prior to the injury complained of decedent pushed Lowenstein from the premises of one Langenbach; that when in the highway Lowenstein said to decedent: “I am on the public road. Now I am ready for you. Come out now;” that decedent replied: “All right,” and went out; that Mary Langenbach, at the time, said: “Don’t strike him;” that decedent received his death wound while in the public highway, immediately upon leaving the Langenbach premises; that Lowenstein, at the time, was insane.
In the case of Lovelace v. Travelers Protective Assn., etc., supra, the court said: “There is no proof that Graves [the one who killed Lovelace] exhibited a weapon, or made any remarks indicating a purpose to shoot, before t|ie affray. The mere fact that Lovelace engaged in, or brought on, a fight in the manner described, did not, of itself, indicate that he.sought death, or had reason to expect it as a consequence of his action.”
The answers returned by the jury are not inconsistent with the general verdict, which must have rested upon the jury’s finding that the death of Stiver was an accident within the meaning of the policy.
Comstock, J., concurs in the conclusion.
Roby, C. J., absent.