Donohue v. Washington Nat. Ins. Co.

• Decision Date: 16 April 1935
• Citation: Donohue v. Washington Nat. Ins. Co., 259 Ky. 611, 82 S.W.2d 780 (Ky. Ct. App. 1935)
• Parties: DONOHUE v. WASHINGTON NAT. INS. CO.
• Court: Kentucky Court of Appeals

82 S.W.2d 780

259 Ky. 611

DONOHUE v. WASHINGTON NAT. INS. CO.

Court of Appeals of Kentucky

April 16, 1935

Rehearing Denied June 21, 1935.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division.

Action by Joe Donohue against the Washington National Insurance Company.From a judgment for defendant, plaintiff appeals.

Reversed and remanded.

STITES J., dissenting.

Julius Leibson and Samuel Leibson, both of Louisville, for appellant.

Lukins & Jones, of Louisville, for appellee.

CREAL Commissioner.

This is an action on an accident insurance policy which, among other things, provides for payment of weekly indemnity for a period not exceeding 26 weeks, for "injuries sustained solely through external, violent and accidental means, independent of all other causes," which "immediately and continuously totally disables the insured from doing any work of any nature."

In his petition the plaintiff, who is appellant here, claims to have sustained injuries solely through external, violent, and accidental means which wholly and continuously disabled him for a period of 26 weeks.In describing the way and manner in which the alleged injury occurred, the petition follows substantially, if not literally, the quoted terms of the provisions of the policy.

At the close of plaintiff's evidence, the court sustained defendant's motion for a peremptory instruction, and from a judgment conforming to the directed verdict, plaintiff prosecutes this appeal.

On June 20, 1933, appellant, who was engaged in selling oil and gasoline and making deliveries from a truck, attempted to pick up from the ground a can of oil weighing 40 pounds.Appellant testified that, when he lifted the can, he was stricken with such a severe pain in the left hip that he dropped the can and fell to the ground, striking on that hip; that, when he lifted the can, he was in a sort of a twist.In reply to a question by a juror as to the character of pain, he replied: "Just a quick, severe catch.It seemed to me apparently like you get a rag and tear it like that--the sound of the tear of a rag.That is the way it felt in my hip at the time."He stated that the pain was more severe after the fall; that the following day he noticed a bruised place on his hip, and this seemed to disappear within a few days, but reappeared some time afterward.When asked what was the cause of his disability, he responded, "I think the lift, the strain and the fall."

The physician who treated appellant testified that in his determination as to the cause of appellant's disability he was compelled to base his opinion on the history of the case as given by the patient.He did, however, indicate there was a damage to the nerves in that hip and that he attributed appellant's disability to the injury complained of.Otherwise his evidence throws little, if any, light on the questions to be determined.The evidence of appellant and his physician was sufficient to sustain the allegation of the petition as to the extent and duration of the disability.

It is contended by appellant that there was sufficient evidence to show that he suffered an accident within the meaning of the policy and that the injury resulting was sustained solely through external, violent, and accidental means, independent of all other causes, and therefore the case should have gone to the jury.On the other hand, counsel for appellee maintain that, if appellant was in fact injured, his injuries resulted in an ordinary act in which he was intentionally engaged, and that in such circumstances the injury is not produced or sustained by accidental means within the meaning of the policy, and there can be no recovery thereunder.As supporting this theory, Salinger v. Fidelity & Casualty Co. of N. Y.,178 Ky. 369, 198 S.W. 1163, 1164, L.R.A. 1918C, 101;Bahre v. Travelers' Protective Ass'n,211 Ky. 435, 436, 277 S.W. 467, 468, and text authority and a number of cases from foreign jurisdictions are cited.

An accident in its commonly accepted meaning and as used in insurance contracts is "an event that takes place without one's foresight or expectation.An undesigned, sudden and unexpected event, *** happening by chance or unexpectedly, taking place not according to the usual course of things.""An event which proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected; chance, casualty or contingency."Pack v. Prudential Casualty Co.,170 Ky. 47, 185 S.W. 496, 498, L.R.A. 1916E, 952;Huffman v. Commonwealth,193 Ky. 79, 234 S.W. 962, 964.It is therefore apparent that appellant did suffer an "accident" within the commonly accepted meaning and application of that term.So it only remains to be determined whether the accident was suffered in a way and manner to bring it within the terms and coverage of the policy.

In the Salinger Case, supra, which has been widely quoted, it appears that Salinger, who was a merchant, held a policy insuring against injury sustained through accidental means and resulting directly, independently, and exclusively of all other causes.While lifting a bundle of boxes weighing about 24 pounds to a shelf above his head, he found that he could not distinctly see the numbers on the boxes, and it developed that he had lost the sight of one of his eyes.He was in good health and suffered no pain.He sought recovery on the ground that he had lost his sight through accidental means within the terms and meaning of the policy.The answer, in addition to a traverse of the petition, affirmatively alleged that he was afflicted with embolus, which disease and his bodily condition resulting therefrom were the causes of the loss of his eye.Salinger testified that he lost his eye at the time and in the manner above stated.Three physicians who testified were in agreement that he lost his eye from embolus, which in common parlance is a clot in the blood vessels, and that it was brought about by his bodily condition, and it would not have been possible for him to lose his sight by a slight exertion in lifting the boxes independently of his bodily infirmity.After referring to the pleadings and the foregoing matters appearing in evidence, the opinion says: "So, the question for decision is reduced to this proposition, Does an intentional exertion constitute 'accidental means' of injury within the provision of the policy?"

The opinion then cites and quotes from cases from other jurisdictions indicating a negative answer to the question, and following substantially the rule as stated in 1 C.J. p. 426, that: "If a result is such as follows from ordinary means employed voluntarily and in a not unusual or unexpected way, it cannot be called a result effected by accidental means."The opinion, however, sums up with this conclusion: "As above stated there is no real contradiction in the testimony in this case as to what caused the loss of plaintiff's eye, the three physicians agreeing that Salinger would not have lost his sight in the absence of his bodily condition caused by the clot in the blood vessels.Consequently, under the rule above announced, his injury was not caused by accidental means within the terms of the policy."

In the Bahre Case, cited by counsel for appellant, the insured, while riding over a rough road in an automobile, claimed to have been thrown against the side of the car several times, and on one of these occasions his leg struck the handle on the door, and on the rebound the calf of his leg struck the seat causing him some pain.This occurred on May 30 and no serious trouble developed until June 3, when he called a physician.On June 7 or 8 the leg commenced to swell, and for the first time the physician noticed that it was discolored.The opinion quoted the rule referred to in the Salinger Case to the effect that an injury is not produced by accidental means within the meaning of an insurance policy where it is the direct, though unexpected, result of the act in which insured is voluntarily engaged.The policy, among other things, provided that there will be no liability for injury "of which there are no visible marks upon the body."It is pointed out that there was no time assigned for the accident, no abrasion, bruise, or external visible mark to indicate an injury for more than a week, etc.After discussing the evidence to show connection between the injury claimed and the alleged accident or accidental means which caused it, it is said: "It thus appears that there was no evidence upon this issue authorizing a verdict in favor of the plaintiff.At most it is speculative and it is well settled that a jury is not permitted to speculate upon their verdict."

It will therefore be seen that the case before us in most material aspects is quite different from either the Salinger Case or the Bahre Case, in that appellant had never had any disease or trouble with his hip, and he connects his injury directly with the lifting of the can and the fall occasioned thereby.Neither the Salinger Case nor the Bahre Case is rested on the theory that the insured was voluntarily and intentionally doing the thing claimed to have caused the injury, although that principle is referred to in both opinions.The opinion in the former was based on the theory that the injury resulted from disease and in the latter that evidence was not sufficient to connect the...