Jennings v. Nat. L. & A. Ins. Co.

• Decision Date: 01 February 1932
• Docket Number: No. 17347.,17347.
• Citation: 46 S.W.2d 226
• Court: Missouri Court of Appeals
• Parties: DANIEL JENNINGS, RESPONDENT, v. THE NATIONAL LIFE & ACCIDENT INSURANCE CO., APPELLANT.

46 S.W.2d 226

DANIEL JENNINGS, RESPONDENT, v. THE NATIONAL LIFE & ACCIDENT INSURANCE CO., APPELLANT.

No. 17347.

Kansas City Court of Appeals. Missouri.

February 1, 1932.

Appeal from the Circuit Court of Pettis County. — Hon. Dimmitt Hoffman, Judge.

REVERSED AND REMANDED.

Shain & Shain and Henry Salveter for respondent.

Jones & Wesner for appellant.

BOYER, C.

This is an appeal from a judgment in favor of plaintiff in a suit on an accident and health policy.

The points made are (1) the court erred in refusing to give defendant's peremptory instruction at the close of all the evidence: (2) the court erred in excluding testimony; (3) the court erred in giving instructions at the instance of plaintiff; and (4) the verdict is excessive. We will state the facts in conjunction with a discussion of the points, and first direct our attention to the question as to whether a demurrer to the evidence should have been sustained.

Plaintiff suffered an injury to his left eye, and appellant insists that under the evidence the injury was not "effected accidentally," but was the consequence of plaintiff's voluntary act in holding a coffee pot to be welded by the use of an acetylene torch, and "there is no evidence of a slip or mishap by the operator of the torch or respondent in the act of applying said torch or holding said coffee pot which caused a piece of metal to strike respondent's eye." The record discloses that plaintiff was injured in the following manner: Men were in the street in front of plaintiff's house engaged in the work of laying a pipe line. One of the men was using an acetylene torch or blow pipe which was employed to solder the pipe. The handle of plaintiff's coffee pot was broken and he desired to have it mended and came out upon the street on his way to a shop for that purpose, but instead of going to the shop he asked the man in the street, who was using the blow pipe, if he could mend it; the man said "yes," and requested plaintiff to hold the handle and coffee pot in position while the torch was applied. Plaintiff held the coffee pot and the handle in place, and the man proceeded to apply the torch and solder to the broken part. During this process some substance, described by plaintiff as a piece of steel or some other metal, struck plaintiff in the left eye. He dropped the coffee pot and ran into his house holding his eye: it was causing him severe pain. There were some men there who after a time turned back the lid of his eye and with a silk handkerchief removed a piece of metal therefrom.

It is insisted that the injury was the result of ordinary means voluntarily employed, and that the record is barren of any evidence showing that, while the torch was being applied, anything unforeseen or unusual intervened which caused a spark or piece of metal to strike plaintiff's eye, and that it can very well be said that the injury was the natural and probable consequence of what was done. It appears to be the trend of the argument of appellant that there was nothing unusual, unforeseen, unexpected or unintended which occurred in the process of mending the article, but that it was done as intended and therefore the injury which resulted to plaintiff was not "effected accidentally." It is urged that the case falls within the rule applied in Caldwell v. Travelers Ins. Co., 305 Mo. 619, 267 S.W. 907, and other cases following it. We think the position of appellant on this point is untenable and that the rule applied in the Caldwell case does not fit the facts and issues in the case at bar. The act of mending the coffee pot was voluntary and intentional, but the thing which caused the injury, that is, a flying spark or piece of metal striking plaintiff in the eye, accompanied the act and was wholly unexpected, unintended, and unforeseen and properly falls within the category of things accidental. It could properly be said and found that the injury was "effected accidentally" on account of mischance, slip or mishap which occurred during the performance of the act itself. There is no room, therefore, in this case for the application of the rule applied in the Caldwell case, supra.

In the present case the terms of the policy provide that the company "does hereby insure Daniel Jennings, herein called the insured, as a musician... . against loss of life, limb, limbs, sight, or speech and hearing, resulting directly and independently of all other causes for a bodily injury which is sustained while this policy is in force and which is effected accidentally (excluding suicide, sane or insane), herein called `such injury' in the initial principal sum of three hundred dollars; and against loss of time resulting either from `such injury' and beginning within thirty days from date of accident or from sickness ... in the sum of ten dollars per week, herein called the weekly indemnity." Indemnity for the loss of the sight of one eye was to be one-half of the principal sum. Provision is made for payment on account of total or partial loss of time according to the following sections:

"Section B. The company will pay indemnity at the rate of the weekly indemnity for each whole day, not exceeding two years, that the insured is wholly disabled and prevented solely by such injury from performing any and every duty pertaining to his business or occupation and is not engaged in or performing the duties of any other business or occupation and is under the regular treatment of a licensed physician."

"Section C. The company will pay indemnity at the rate of one-half of the weekly indemnity for each whole day, not exceeding six months, that the insured is partially disabled and prevented solely by such injury from performing important daily duties essential to his business or occupation and is under the regular treatment of a licensed physician."

Plaintiff's evidence is to the effect that he was totally disabled from following his vocation as musician from the time of his injury, August 29, 1930, and that said disability would continue on account of loss of the sight of his eye. It is admitted that the policy was in effect at the time of the injury, and under the evidence most favorable to plaintiff it was competent for the jury to determine under proper instructions whether plaintiff in fact sustained an injury "effected accidentally" and the amount which he should recover for said injury and for loss of time occasioned thereby. The demurrer was properly overruled. [Cameron v. Mass. Protective Assn., 220 Mo. App. 780, 786; Curry v. Fed. Life Ins. Co., 221 Mo. App. 626, 629.]

It is next insisted that the court erred in excluding the testimony of plaintiff's attending physician, on objection of the plaintiff. The correctness of the ruling turns on the question as to whether plaintiff waived the privilege to object to the testimony of the doctor. Plaintiff alleges in the petition that he visited an eye specialist and was treated for his injury once a week and "that said eye specialist has informed plaintiff that the sight of said eye is a practical total loss for life." Counsel for plaintiff,...