186 Ind. 126 | Ind. | 1916
■The evidence for appellee shows that formerly decedent Griffis was a lawyer of Randolph county; that immediately before his death he and his wife resided at Cleveland, Ohio, about four miles from the business center of the city; that on October 25, 1913, at about seven o’clock p. m., Mr. and Mrs. Griffis left their place of residence and went to a restaurant in the business center of the city for their' evening meal, where Mr. Griffis ate some mushrooms at about eight o’clock p. m.; that thereupon they went home, arriving there at about nine o’clock p. m.; Mr. Griffis, about fifteen minutes thereafter, went to his bedroom to prepare for retiring, while Mrs. Griffis went to the bathroom to take'a bath, and where she was occupied for about thirty minutes; that she then heard water running at a sink near Mr. Griffis’ bedroom and went to turn off the water; on arriving at the sink she discovered a quanity of mushrooms that had been
Appellant vigorously assails the New York case, and those of other jurisdictions following it, and earnestly contends that, while the death may have been accidental and violent, it was not effected by accidental and violent means; that Mr. Griffis voluntarily ate the mushrooms, and the mere fact that an unexpected result followed in nowise makes the means accidental within the meaning of the language of the policy. In support of its theory appellant, among numerous other cases, cites that of Smith v. Travelers’ Ins. Co. (1914), 219 Mass. 147, 106 N. E. 607, L. R. A. 1915B 872, in which
It is contended by appellant that ptomaine poison is a disease, and that consequently a recovery for injury therefrom is expressly excluded by the terms of the policy. We are of the opinion that, under the facts disclosed here, the ptomaine poison did not constitute a disease within the meaning of the language of the policy exempting appellant from liability for injuries caused by disease. Railway Mail Assn. v. Dent, supra; Brintons v. Turkey (1905), A. C. 230, 2 Ann. Cas. 137 (anthrax infection case).
The complaint was sufficient to repel appellant’s demurrers, and there was evidence that supported its material averments.
Complaint is made of certain instructions given and of the failure to give requested ones. What we have said in reference to the complaint and evidence disposes of appellant’s principal contentions relative to instructions given and refused. In other respects we are satisfied that there was no reversible error committed. Judgment affirmed.
Note. — Reported in 114 N. E. 83. Death by accidental means ■under the law of insurance, definition, 8 Am. St. 763; 1 Cyc 249, 250; 1 C. J. 427, 428. Construction of a clause in an accident insurance policy excepting death by disease, 5 Ann. Cas. 86; Ann. Cas. 1917 C 463.