DISSENTING OPINION. This is an action to collect the double indemnity for accidental death provided for in an insurance policy sold to Edith Van Wey by the appellant and which was in full force and effect when she died. The issue joined by the motion for directed verdict presents the single question: Had appellees made a primafacie case when they rested?
It is the duty of an appellate tribunal to consider only the evidence tending to support the verdict or finding, and where different inferences might be drawn, it is our duty to adopt the inference which supports the verdict or finding. Kokomo Life,etc., Ins. Co. v. Wolford (1929), 90 Ind. App. 395, 397,167 N.E. 156; Fidelity Health Accident Co. v. Holbrook (1933),96 Ind. App. 457, 462, 463, 169 N.E. 57. We can not weigh the evidence.
All rights of the parties in this action are contractual rights and are necessarily contained within the policy sued upon.
The only reasons urged by appellant for a reversal, are, that the evidence does not show that the death had not resulted from bodily or mental infirmity or disease, and does not show that the death was produced by accidental means. *Page 207
The proviso in the policy upon which this contention is based is as follows: ". . . 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." This proviso in the policy gives the appellant a specific defense, but the mere existence of the proviso in the policy, will not destroy the indemnity provided. The proviso must be proven by a fair preponderance of the evidence in the trial before it becomes controlling. It is wholly unproven in this case.
In considering the evidence we are bound by the rule applicable under the insurance contract. We may not properly apply the rule applicable in determining the proximate cause of injury, in tort actions, for wrongful death. Continental Casualty Company v. Lloyd (1905), 165 Ind. 52, 64, 73 N.E. 824; Freeman v.Mercantile Mutual Accidental Assn. (1892), 156 Mass. 351, 30 N.E. 1013, 17 L.R.A. 753. In tort actions it is the proximatecause of the injury that determines liability. In actions on accident insurance policies, containing provisos like this one, it is the proximate cause of the death that determines liability. In the latter class of cases the line of causation is advanced one step from that in the tort cases. In Freeman v.Mercantile Mutual Accident Assn., supra, the court said: "What kind of cause is to be deemed proximate within the meaning of the policy?" In answering the question, the court said, among other things:
"The law will not go further back in the line of causation than to find the active, efficient, procuring cause, of which the event under consideration is a natural and probable consequence, in view of the existing circumstances and conditions. The law does not consider the cause of causes beyond seeking the efficient, *Page 208 predominant cause, which, following it no further than those consequences that might have been anticipated as not unlikely to result from it, has produced the effect." This is quoted with approval in Continental Casualty Company v. Lloyd, supra, at page 64. It seems to be the law in Indiana.
Of course, had the policy provided that no accidental death benefit should be paid if the injury which caused the death resulted from bodily or mental infirmity or disease in any form, a different question would be presented. Sharpe v. TheCommercial Travelers' Mutual Accident Association (1894),139 Ind. 92, 37 N.E. 353; Knights and Ladies of Columbia v. Shoaf (1906), 166 Ind. 367, 77 N.E. 738.
The majority opinion correctly states the proof in this case in these words:
"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 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."
Having determined all these facts, a complete case is made for the appellees, agreeable with the rule of proximate cause of thedeath applicable in suits on insurance policies, containing a proviso like that in this case. There was no further question before the lower court, and there can be no further question rightfully for this court to determine. But the majority opinion, then proceeds to apply the rule of proximate cause of theinjury as applicable only in tort actions for wrongful death, or when the policy expressly includes the word "injury" as well as "death," in its proviso excluding *Page 209 liability. It goes back in the line of causation one step further than any Indiana court has ever gone in actions on insurance policies, providing indemnity for accidental death so far as we can find. The cases cited in the majority opinion on this proposition do not, support it. In Husbands v. Indiana, etc.,Accident Assn. (1924), 194 Ind. 586, 133 N.E. 130, the insured was shaking down the ashes in his furnace, and while so doing ruptured a blood vessel in his right lung causing his immediate death. The question before the court was not the proximate cause of death, but whether the injury was an accident at all or not? This court held that it was not an accident, saying: "We are of the opinion that the better reasoning points out, and the weight of authority holds, the true test to be that, if in the act which precedes the injury, though an intentional act, something unusual, unforseen, and unexpected occurs which produces the injury, it is accidental; but, if in the act which precedes the injury, something usual, forseen and expected occurs which produces the injury, it is not accidentally effected." The court further points out: "And the facts found fail to show that the insured slipped, or stumbled, or that anything fell upon or against him, or that anything whatever that was unforseen or not intended happened to him of an `external violent' nature, or that he met with an `accident' of any kind, except that his exertion in shaking down the ashes in his furnace ruptured a blood vessel weakened by disease which he did not intend thereby to rupture."
In Schmid v. Indiana, etc., Accident Assn. (1908),42 Ind. App. 483, 85 N.E. 1032, the insured who lived in Indianapolis, Indiana, having an altitude of about 600 feet above sea level, went to Colorado Springs, *Page 210 Colorado, having an altitude of about 6,000 feet above sea level. He left the station at the latter city with a traveling bag in each hand and walked to the Antlers Hotel, ascending a flight of 100 steps leading to the hotel, and thence went to the lobby of the hotel, where he fell to the floor and expired. So far as shown he was not injured by the fall.
On appeal the court reviewed many cases and held in substance that while the death may have been an "accident" it was not produced by "accidental means," and was therefore not an accidental death within the terms of the policy.
Neither the Husbands case, supra, nor the Schmid case,supra, even intimate, as stated in the majority opinion, that ". . . injuries received from a fall caused by weakness or physical disability may not properly be said to have been effected solely through accidental means." Time brings weakness and physical disability to all living things. Surely an insurer must know that it brings them to mankind, and it must be bound by its contract with the insured quite as firmly after she becomes weak and disabled, as when she was young, strong and physically perfect enough to be accepted for insurance, unless it has by the contract, expressly exempted itself therefrom.
There is nothing in the policy in suit even remotely suggesting that the insurer will not be liable for the accidental death of the insured if it is the result of a fall to which her "weakness or physical disability" might, in some degree, have contributed. The nearest approached to it is the proviso before quoted. It will, of course, be noted that it is the death and not theinjury of the insured that must result "from bodily or mental infirmity or disease." There is nothing in the evidence, and nothing in the majority opinion indicating *Page 211 that the fall was due to "weakness" or to "bodily or mental infirmity or disease in any form." Indeed, the majority opinion states, "There was no direct evidence of what caused her fall." But if there had been such evidence it could not avail the appellant, for it can be relieved from liability only if thedeath, not the accidental fall, was the result "directly or indirectly from bodily or mental infirmity or disease in any form." This is the contract that appellant sold to the insured and by which appellant and appellee are bound.
There are many cases in this and other states, where a serious question is presented, whether the injury received by the insured, or a disease with which he was afflicted at the time, caused his death. Continental Casualty Company v. Loyd, supra;Fetter v. Fidelity, etc., Co., 174 Mo. 256, 97 Am. St. 560, 61 L.R.A. 459. The proviso mentioned in the policy in this case was evidently intended to protect the company in such a situation.
We agree with the majority opinion that the burden was upon the appellees to prove that the insured's death occurred as a result of bodily injuries effected solely through accidental means. The majority opinion's excellent summation of the facts proven, conclusively shows that appellees have fully discharged that burden. To the facts recited in the majority opinion we add the following from the evidence of Carrie Van Wey:
"I observed mother have a fall the morning of January 15, "just as she was going in the bathroom," at 6 o'clock. There's a step going into the bathroom. She had gotten up and as usual was going to the bathroom, and she, I heard her, she called, and of course she fell, and couldn't get up. I picked her up at the step and put her back in bed, . . ." *Page 212
Where, as in this case, there is conclusive proof that the insured fell just as she was going in her bathroom and that she was picked up at the step, we must assume that the fall was either accidental or intended. There is no middle ground. All the usual experiences of life repel the thought that it was an intentional fall. All the circumstances, conditions and physical facts existing at the time and place of the fall are fully depicted in the evidence, and are abundantly sufficient to justify the trial court in inferring that the fall was accidental, caused by the bathroom step. The insured had become aged and feeble, was sometimes dizzy and tottering when she walked — a rather natural result of the usual infirmities of age. The proximate cause of her death was not her age, her feebleness, her occasional dizziness, or her tottering, but was a direct result of a fall, that was not forseen, not intended and was a happening of an external, violent nature. It was clearly a death produced byaccidental means. Orey v. Mutual Life Ins. Co. of N.Y. (1939), 215 Ind. 305, 19 N.E.2d 547.
In the latter case the insured was driving a truck. He left the truck on the road and went to a village store very ill and said he was dying. A doctor was called and found that insured had a scrotal, strangulated hernia from which he died. The only proof concerning the cause of the injury was the conditions and physical facts of the truck and its surroundings when it was examined after decedent had left it, but there was nothing to show what had caused the injury. One doctor testifying said it "would have to be caused by some extremely violent external means."
Referring to the hernia this court said: "whether it was caused by the engine backfiring while he was cranking the truck, or bya fall (our italics) or by some other accidental means, is immaterial to recovery." *Page 213
We think this is a correct statement of the law applicable to the instant case. When the facts proven are sufficient to cause a reasonable person to believe that the injury which caused death was effected solely through external, violent and accidental means, of which there is a visible contusion or wound on the exterior of the body, it is immaterial to recovery just what accidental means caused the injury.
The majority decision is a notable departure from the rule that has prevailed in Indiana with respect to the application of the rule of proximate cause of death in insurance cases, extending it to the proximate cause of the injury, without any provision in the contract authorizing such extension. We do not believe the court may rightly read the word "injury" into the proviso quoted. To do so changes the contract of the parties, greatly reducing the liability of the insurer. But if it is read into the policy, we think the trial court had lawful evidence, and legitimate inferences from the evidence fully supporting the material averments of the complaint, making a prima facie case for appellees.
It is the duty of the courts to construe an insurance policy liberally in favor of the insured. When any reasonable construction can be placed on a policy that will prevent the defeat of insured's indemnification for a loss covered by general language, that construction will be given. "Insurance policies are to be liberally construed in favor of the assured; and anexception is to be strictly construed against the underwriters." (Our italics.) Grant and Another v. The Lexington Fire, Life,etc., Co. (1854), 5 Ind. 23, 26, 27. This case has been cited with approval as late as Atkinson, Admr. v. Indiana, etc., Ins.Co. (1924), 194 Ind. 563, 143 N.E. 629; and Werner v. StateLife Insurance Co. (1937), 104 Ind. App. 27, 7 N.E.2d 209, 211. ". . . Indeed, it *Page 214 is the purpose of strict construction to confine the meaning to the plain and direct import of the language used . . ." Mark andAnother v. The Aetna Insurance Company (1867), 29 Ind. 390, 394. ". . . . Conditions which create forfeitures will be construed most strongly against the insurer. Only a stern legal necessity will induce such construction as will nullify the policy." German-American Insurance Company v. Yeagley (1904),163 Ind. 651, 658, 71 N.E. 897; quoting from The NorthwesternMutual Life Insurance Company v. Hazelett (1886),105 Ind. 212, 4 N.E. 582. "It is well-settled law that all conditions in policies of insurance which when violated work a forfeiture as against the assured are to be construed liberally in favor of assured and strictly against the insurer"; German-AmericanInsurance Company v. Yeagley, supra, quoting from The AetnaLife Insurance Company v. Deming, Administrator (1890),123 Ind. 384, 24 N.E. 375. "In fact, all limitations in an insurance contract are construed most strongly against the insurer."Atkinson, Adm. v. Indiana, etc., Ins. Co. (1924),194 Ind. 563, 568, 143 N.E. 629. See also Griffin v. Prudential Ins.Co. of America, 102 Utah 563, 133 P.2d 333, 144 A.L.R. 1402.
Not only the cases cited but literally dozens of others assert this as the rule to guide the courts in construing insurance policies, and exceptions and provisos therein contained. It is the rule by which we should be guided in this case.
The judgment of the lower court should be affirmed.
Note. — Reported in 59 N.E.2d 721.