DISSENTING OPINION. I accept as correct the statement of facts set out in the majority opinion. *Page 215
It is admitted in the majority opinion that the proximate cause of the death of deceased was an injury caused solely by violent and external means, with which I agree. This leaves us concerned only with the cause of the injury.
When more than one cause contributes to an injury, and if the facts are such that prudent persons might draw different conclusions therefrom, the question which of the contributing causes is the efficient, proximate, dominant cause is a question for the trier of the facts, which in this case happened to be the court. Chicago Eastern Illinois Ry Co. v. Whipking (1932),96 Ind. App. 167, 170 N.E. 548.
The fact that the deceased was able to walk to the bathroom without assistance, that she fell and was picked up at the step, and that after she fell she called out, are not mere items of conjecture or speculation, but are all items of positive evidence from which the reasonable inference could be drawn that the injury was caused solely by accidental means, namely, that she slipped or stumbled while negotiating the step into the bathroom. To require strict proof as to what the specific accidental means were which caused the injury would preclude a recovery in most cases where there was no eye-witness to the accident.
The courts of the various jurisdictions are at variance as to the burden of proof in actions upon accident policies or accident features of life policies, as to whether injury or death was the result of antecedent disease or other abnormal bodily or mental condition. These various viewpoints are set out in the annotation covering this subject in 144 A.L.R. 1416.
In Indiana the recognized rule in a case like the present one is that the burden of proof is upon the plaintiff to show that death resulted from a bodily *Page 216 injury, exclusively and independently of all other causes, and that the bodily injured was effected directly through external, violent, and accidental means and was not the result, directly or indirectly, of any disease or mental or bodily infirmities.Police and Firemen's Ins. Assn. v. Blunk (1939),107 Ind. App. 279, 20 N.E.2d 660. It is in the application of this rule, however, that the difficulties are encountered. This burden of proof can be discharged by circumstantial evidence.
In Orey v. Mutual Life Ins. Co. of N.Y. (1939),215 Ind. 305, 19 N.E.2d 547, the trial court directed a verdict for the defendant. This was a suit founded on a clause in an insurance policy similar to the one now under consideration and which had to do with one who died as the direct result of a hernia. No person saw the accident, but the deceased was seen driving his truck loaded with lumber, and when going up a hill on a dirt road the truck for some reason stopped and backed up for some little distance. He was seen in the road around and beside the truck, and then seen walking up the road toward the village. He came to the village store, appeared to be sick, and announced that he was dying, and was taken to a doctor's office, where the hernia was discovered, and from which he shortly thereafter died. There was evidence that his overalls were torn; that clay and dirt were on the knees of the overalls; that there were scratches and small wounds on his legs. It was found that there was a rock under one of the rear wheels of the truck, and there were foot prints in the dirt around the truck, and the crank was found inserted in the front of the truck in position for cranking. The man who went for the truck found that a ground-wire was loose, but there was no direct evidence as to what the deceased had done or was doing when injured, nor had anybody seen *Page 217 him at the time he was injured. Judge Fansler, in reversing that case, said in reference to the cause of the injury that "Whether it was caused by the engine backfiring while he was cranking the truck, or by a fall, or by some other accidental means, is immaterial to recovery," although he also said it was necessary that the plaintiff prove that the deceased "`died as a direct result of bodily injury effected solely through external, violent, and accidental means, independently and exclusively of all other causes.'"
As to facts necessary for the plaintiff to prove in a case like the one at bar, see also Chicago Eastern Illinois Ry. Co. v.Whipking, supra; Kelly v. Prudential Ins. Co. of America (1939), 334 Pa. 143, 6 A.2d 55.
In my opinion the evidence in this case together with the inferences which might reasonably flow therefrom are sufficient to sustain the finding of the trial court, and to reverse this case requires this court to weigh the evidence. The judgment should therefore be affirmed.
Note. — Reported in 59 N.E.2d 721.