Appellees were the beneficiaries named in a policy of insurance issued to one Edith Van Wey by appellant, insuring her life in the sum of $1,000.00 with double indemnity in the event of death by accidental means. The insured died on January 18, 1942. The appellant paid the principal amount of the policy but declined to pay the double indemnity on the theory that the insured's death was not through accidental means but was due directly or indirectly to bodily infirmity and disease.
Suit was filed upon the double indemnity provision of the policy. At the conclusion of plaintiffs' evidence defendant asked for a directed verdict. Appellees joined in the request and thereupon the jury was discharged and solely upon the evidence of plaintiffs the court found for the plaintiffs and entered judgment against the defendant for the additional amount plus interest. This appeal followed and the only question presented is the sufficiency of the evidence to bring the case within the double indemnity provision of the policy sued on.
There is no material conflict in the evidence. The insured was 62 years old at the time of her death. For eight or 10 years prior thereto she had suffered from chronic nephritis, hypertension and coronary *Page 201 sclerosis which at times caused headaches and dizziness. She was confined to her bed intermittently and at other times she was up and about taking care of her home and doing the cooking for herself and her daughter who is a school teacher.
About two weeks prior to her death, her condition became acute and she was confined to her bed and her family doctor was called. He testified without contradiction that during the week prior to her fall she suffered dizzy spells and was very weak and tottered when she attempted to walk and that he instructed her to stay in bed. The floor in the bathroom in the Van Wey home was a step higher than the bedroom in which the insured slept. About six o'clock on the morning of January 15, 1942, she arose from her bed and went into the bathroom. Her daughter, who occupied another bedroom in the house, heard, but did not see, her mother fall. Her mother called and the daughter went to her and found her lying on the floor of the bathroom near the step. There is no evidence that she said or indicated that she had slipped or stumbled. She had fallen and fractured her hip. The daughter picked her up at the step and put her back in bed. The fracture was reduced and her condition seemed satisfactory for about 24 hours. Then she developed hydrostatic pneumonia from which she died on January 18, 1942. Hydrostatic pneumonia frequently occurs in elderly people when they are compelled to lie upon their backs for a considerable length of time. The lungs congest and are gradually filled with fluid and breathing becomes impossible. Her doctors testified that her death could and might have been entirely independent of and uncontributed to by her physical illness and that except for the broken hip and the pneumonia which followed *Page 202 as a natural result of the necessary treatment of the broken hip, she might have lived for several years.
The double indemnity clause of the insurance policy sued on, so far as material in this appeal, reads as follows:
"The amount of accidental death benefit . . . shall be payable in addition to the face amount of insurance . . . upon due proof that the death of the insured occurred . . ., as a result, directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means, . . . provided, however, that no Accidental Death Benefit shall be payable if the death of the insured resulted . . . directly or indirectly from bodily or mental infirmity or disease in any form."
Appellant contends that there was no evidence to establish that insured's death occurred as a result of bodily injuries effected solely through accidental means and that the only reasonable inference from the evidence is that her death resulted directly or indirectly from bodily infirmity and disease.
Admittedly insured died from hydrostatic pneumonia but this disease was the natural result of necessary treatment of the broken hip which in turn was admittedly the result of a 1, 2. fall. The fall set in motion the events which culminated in her death. The fall, therefore, was the proximate cause of the insured's death and in determining liability in a case of this kind it is the proximate cause which is controlling.Continental Casualty Co. v. Lloyd (1905), 165 Ind. 52, 59, 60, 73 N.E. 824; Chicago Eastern Illinois Ry. Co. v.Whipking (1930), 96 Ind. App. 167, 173, 174, 170 N.E. 548;Kokomo Life, etc., Ins. Co. v. Wolford (1929),90 Ind. App. 395, 167 N.E. 156. *Page 203
The question then remains as to whether the fall was effected through accidental means or whether the fall resulted directly or indirectly from bodily infirmity or disease. There was 3. absolutely no evidence that the insured slipped or stumbled. There was uncontradicted evidence that for eight or 10 years she had been confined to her bed intermittently by reason of disease which caused weakness and dizziness. It was the uncontradicted evidence that for a week or more before her fall she had been confined to her bed and was very weak physically and had dizzy spells and tottered when she attempted to walk, but injuries received from a fall caused by weakness or physical disability may not properly be said to have been effected solely through accidental means. Husbands v. Indiana, etc., AccidentAssn. (1921), 194 Ind. 586, 133 N.E. 130; Schmid v. IndianaTravelers, etc. (1908), 42 Ind. App. 483, 85 N.E. 1032.
The burden of proof was upon the plaintiffs to produce evidence bringing the case within the double indemnity clause of the policy of insurance sued on. Newman v. Railway Officials 4. and Employees' Accident Association (1895), 15 Ind. App. 29, 32, 42 N.E. 650; Orey v. Mutual Life Insurance Co.of N.Y. (1939), 215 Ind. 305, 307, 19 N.E.2d 547; Police Firemen's Ins. Assn. v. Blunk (1939), 107 Ind. App. 279, 285,20 N.E.2d 660. The burden was upon them to prove that the insured's death occurred as a result of bodily injuries effected solely through accidental means.
While ultimate facts may be established by direct or circumstantial evidence and by inferences properly drawn from such evidence yet neither courts nor juries have any 5, 6. right to presume any fact in issue which they are called upon to determine. *Page 204 Kaiser v. Happel (1941), 219 Ind. 28, 33, 36 N.E.2d 784;Baltimore Ohio R. Co. v. Reyher, Admx. (1939),216 Ind. 545, 549, 550, 551, 24 N.E.2d 284. Therefore, the decision in this case cannot be predicated on mere presumption that because there was a fall that such fall was effected through accidental means.
That ultimate fact must be established by evidence or proper inferences to be drawn from evidence. A finding as to this fact cannot be based upon conjecture, speculation or guess, Orey v.Mutual Life Insurance Co. of N.Y. (1939), 215 Ind. 305, 309,19 N.E.2d 547; J.C. Penney, Inc. v. Kellermeyer (1939),107 Ind. App. 253, 264, 19 N.E.2d 882, and the mere possibility that it may be true will not properly sustain an inference that it is true. N.Y. Central R.R. Co. v. Green, Admx. (1938),105 Ind. App. 488, 496, 497, 15 N.E.2d 748; Moorman Mfg. Co. v.Barker (1941), 110 Ind. App. 648, 659, 40 N.E.2d 348.
In this case the direct evidence simply shows a woman who was in such state of health that she was weak and subject to dizzy spells and was tottery when she walked. This woman went to 7. her bathroom, which involved walking up a step or two, and fell. All that the direct evidence shows is that she fell and broke her hip. There was no direct evidence of what caused her fall.
The circumstantial evidence is such that the court could not properly draw the inference either that the fall was caused by dizziness and her tottery physical condition or that it was caused by slipping or stumbling or anything else that might fall within the definition of accidental means. To choose either of these alternatives would mean resort to speculation and conjecture. *Page 205
The case of Orey v. Mutual Life Insurance Co. of N.Y.,supra, was not referred to in appellee's brief, but in the consideration of this case by the court the Orey case has been carefully studied. In the Orey case the insured was a strong, muscular and healthy young truck driver, about 22 years of age, and the evidence showed he had some sort of a mishap while driving his truck, as a result of which he suffered a scrotal strangulated hernia, from which he died. One of the doctors testified that a hernia such as the one in question "would have to be caused by some extremely violent external means." This same doctor said upon cross-examination that in his judgment "the hernia was caused by a blow, or a fall against some object, and that it could not be caused by strain." There was no such evidence in the case before us to sustain an inference of "accidental means."
In the Orey case, at page 309, the following language was used:
"In the instant case, if the testimony of the expert, who said that the hernia could have been caused by violent external means only, is eliminated, it leaves only the evidence that it might have been caused either by violent external injury, which might be assumed to have been accidental, or by an unusual strain, which might be assumed to have been the result of a voluntary act. The jury might infer that it was one or the other, but a determination without further evidence that it was one rather than the other would depend upon mere speculation or guess, and the trior of facts is not permitted to indulge in such inferences."
That is the situation in the case before us.
In the Orey case it is also said: "There is sufficient evidence that death did not result directly or indirectly from disease or bodily or mental infirmity." In the case before us that cannot be said. *Page 206
There is no evidence to support the decision of the court and appellant's motion for a new trial should have been sustained. Therefore, the case is reversed with instructions to sustain appellant's motion for a new trial and further proceedings consistent with this opinion.
Gilkison, J., dissenting with opinion.
Starr, J., dissenting with opinion.
Note. — Reported in 59 N.E.2d 721.