Kelley v. Pittsburgh Casualty Co.

• Decision Date: 08 January 1917
• Docket Number: 85
• Citation: 256 Pa. 1,100 A. 494
• Parties: Kelley v. The Pittsburgh Casualty Company, Appellant
• Court: Pennsylvania Supreme Court

100 A. 494

256 Pa. 1

Kelley v. The Pittsburgh Casualty Company, Appellant

No. 85

Supreme Court of Pennsylvania

January 8, 1917

Argued October 3, 1916

Appeal, No. 85, Oct. T., 1916, by The Pittsburgh Casualty Company, from judgment of C.P. Washington Co., May T., 1914 No. 190, on verdict for plaintiff, in case of Eugene A Kelley v. The Pittsburgh Casualty Company, a Corporation James B. Haines, Jr., Thomas P. Jones and Lewis C. Sands, Trustees. Affirmed.

Assumpsit on a policy of accident insurance.

McILVAINE, P.J., filed the following opinion, sur defendant's motion for judgment n. o. v.:

This was a suit on an accident insurance policy. The indemnity provided for in the policy was "against loss or disability resulting directly, independently and exclusively of all other causes from bodily injuries effected solely through accidental means -- suicide while sane or insane or any attempt thereat is not covered -- as provided in the following sections:

"Section 1.

"If any of the losses stated in the following Schedule result directly and independently of all other causes and within four years from date of accident from bodily injury as above defined, while this policy is in force, the Company will pay the sum set opposite such loss. . . .

"Section 2. Loss of time from bodily injury.

"For Total Loss of Time --

Limit

"The Weekly Indemnity stated

Four

in the Schedule of Warranties,

Years

Limit

Four

"For Partial Loss of Time --

Limit

Years

"One-half said Weekly Indem-

Four

nity,

Years

"For Total Loss of Time (Beyond

From said limit

Four Years),

to age 70 or pre-

"One-fourth said Weekly Indem-

vious death."

nity,

"Total disability, $25.00 per week; partial disability, $12.50 per week."

There is no clause in the policy either limiting or negativing the liability to any person for indemnity or benefits for injuries in case such injuries shall occur as the result wholly or partially, directly or indirectly, of any disease, bodily or mental infirmity, other than above quoted.

The question for decision in this motion is this -- does the evidence introduced in this case show, or is it sufficient to sustain the finding of the jury, that the plaintiff, Eugene A. Kelley, "sustained loss or disability resulting directly, independently and exclusively of all other causes from bodily injuries effected solely through accidental means?"

At the trial the defendant requested the court to charge as follows:

"Under all the evidence your verdict must be for the defendant."

The court refused this request and held that the question under the testimony was one which should be decided by the jury under the instructions which the court gave them. The defendant's counsel maintain that the court erred in refusing this point and that that error should now be corrected by the court entering judgment notwithstanding the verdict of the jury in favor of the plaintiff.

There is no serious dispute that on December 2, 1910, the plaintiff slipped in walking on steep and icy ground and almost fell, that in righting himself he twisted his body in the region of the abdomen, and that a few hours after this twisting of his body he suffered severe pain in his abdomen. On December 5th an operation was performed and it was discovered that there were adhesions of his bowels to the wall of the abdominal cavity and at the point of adhesion inflammation had set in, so that pus was about to be formed; and it further appeared in the testimony that the plaintiff was disabled for a number of months after this operation was performed. Three physicians who participated in the operation testified to these adhesions of the bowels to the wall of the abdominal cavity, and also testified that in their opinion the inflammation which they discovered and the pus that was about to be formed were the result of a tearing or straining of the tissues at the point where the bowels adhered to the wall of the abdominal cavity, and that the disability which the plaintiff underwent was the result of the twisting of his body in the region of the abdomen when he accidentally slipped and almost fell. The plaintiff from the first of November until the second of December had been in good health, had been attending to his duties as secretary of the Beaver Refining Company, and it was the opinion of the physicians that the adhesions of the bowels to the wall of the abdominal cavity were of such a character, as they discovered them, as not to have given the plaintiff any inconvenience in the performance of his work had not there been a tearing or stretching of the tissues at the point of adhesion when he accidentally slipped, and that the necessity for the operation that they performed and the consequent disability of the plaintiff resulted directly, independently and exclusively of all other causes, from the accidental slip and the wrenching of his body.

The defendant in this case set up first that the plaintiff some months before December 2, 1910, had had an operation for appendicitis, and that he was afflicted, at the time he was convalescent from that first operation, with phlebitis, and that the inflamed condition which the plaintiff's physicians discovered at the time of the operation of December 5th was the result, at least in part, of the previous operation and the conditions which were brought about by and following that first operation. The question was left to the determination of the jury, the court impressing upon the jury its opinion that the plaintiff could not recover unless the testimony showed to their satisfaction that the slipping of the plaintiff as described by him was the sole, efficient cause of the plaintiff's disability.

The defendant's counsel at the argument of this motion contended that, under the contract of insurance in this case, the doctrine of remote and proximate cause, the doctrine of active and passive cause, or the doctrine of efficient and proximate cause, have no application in this case, and that this court should have instructed the jury to find for the defendant because of the fact that the evidence showed that the plaintiff had an adhesion of the bowels to the wall of the abdominal cavity on December 2, 1910, and that this accidental injury would not and could not have been sustained had he been free from bowel adhesions and a normal man. Or in other words, they claim that the adhesion of the bowels to the wall of the abdominal cavity was a cause which contributed to the injury which the plaintiff sustained and that therefore he can not recover.

In this contention we think the defendant errs. It may be admitted -- indeed it must be admitted in this case -- that the plaintiff had adhesions of the bowels to the wall of the abdominal cavity; and it may be admitted, and I think must be under the testimony even of the plaintiff's physicians, that if...