King v. Travelers Ins. Co.

• Decision Date: 12 May 1937
• Citation: 192 A. 311,123 Conn. 1
• Court: Connecticut Supreme Court
• Parties: KING v. TRAVELERS INS. CO.

192 A. 311

123 Conn. 1

KING v. TRAVELERS INS. CO.

Supreme Court of Errors of Connecticut.

May 12, 1937

Appeal from Court of Common Pleas, Fairfield County; Samuel C. Shaw Judge.

Action by Louis R. King against the Travelers Insurance Company, on accident insurance policies. Verdict and judgment for plaintiff, and, from the denial of its motion to set aside the verdict as against the weight of the evidence and contrary to the law, defendant appeals.

No error.

MALTBIE, C.J., and HINMAN, J., dissenting.

Thomas R. Robinson and Daniel L. O'Neill, both of New Haven, for appellant.

George N. Finkelstone and Lawrence S. Finkelstone, both of Bridgeport, for appellee.

Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY, and BROWN JJ.

AVERY Judge.

The plaintiff brought this action to recover for partial disability under three policies of accident insurance issued by the defendant and covering the plaintiff as a dentist. The case was tried to the jury and a verdict returned in favor of the plaintiff. The defendant filed a motion to set aside the verdict as against the weight of the evidence and contrary to the law, and from a denial of this motion has appealed. The only question raised upon the appeal is the propriety of the court's action in denying this motion.

A motion to set aside a verdict on the ground that it is against the weight of the evidence is not proper. It is the function of the trial court or the jury to weigh the evidence and this court upon appeal will not set aside a verdict upon the ground that it was against the weight of the evidence. Laukaitis v. Klikna, 104 Conn. 355, 356, 132 A. 913; Richard v. New York, N.H. & H. R. Co., 104 Conn. 229, 132 A. 451. The only question which can be raised by such a motion is the legal sufficiency of the evidence to support the verdict. Wells v. Radville, 112 Conn. 459, 467, 153 A. 154.

From an examination of the evidence certified, it appears that the jury might reasonably have found the following facts: The plaintiff was a dental surgeon, practicing his profession in Bridgeport, and specializing in the extraction of teeth. The defendant, a Connecticut corporation, issued three policies of accident insurance insuring the plaintiff, by occupation, a dentist. Under one of these policies, he was insured " against loss resulting from Bodily Injuries, effected directly and independently of all other causes, through accidental means. ***" Under the other two policies, he was insured " against loss resulting from Bodily Injuries, effected directly and independently of all other causes, through External, Violent and Accidental means. ***" Each of the policies contained a provision covering partial disability in the following language: " Or, if such injuries, independently and exclusively of all other causes, shall wholly and continuously disable the Insured from date of accident from performing one or more important daily duties pertaining to his occupation, or for like continuous disability following total loss of time, the Company will pay during the period of such disability, but not exceeding twenty-six consecutive weeks, a weekly indemnity. ***" On or about April 8, 1936, and while the policies were in full force, ulcers appeared on the index fingers of both of plaintiff's hands. These ulcers resulted from the breaking down of the tissue of the fingers as the result of long and continuous application of X-rays used in the treatment of his patients. Since that date, the insured has been continuously disabled from performing one or more important daily duties pertaining to his occupation. It was conceded at the trial that the plaintiff was entitled to recover the sum of $1,235 in the event that the jury found in his favor. It was the contention of the defendant, however, at the trial and on this appeal that the jury were not justified upon the evidence in finding that the injuries received by the plaintiff were effected through accidental means within the coverage of the policy; and, further, that they did not partially disable the insured from the date of the accident.

The contracts in this case were made in Connecticut between a Connecticut corporation and a dentist, residing and practicing his profession in Bridgeport in this state. Under familiar principles, they are to be construed, therefore, as Connecticut contracts in accordance with the law of this state. It is here a settled rule that in the construction of insurance policies " ‘ when the words are, without violence, susceptible of two interpretations that which will sustain his claim and cover the loss must, in preference, be adopted." ’ Dickinson v. Maryland Casualty Co., 101 Conn. 369, 379, 125 A. 866, 869, 41 A.L.R. 500; Elberton Cotton Mills, Inc., v. Indemnity Ins. Co., 108 Conn. 707, 710, 145 A. 33, 62 A.L.R. 926; Tomasetti v. Maryland Casualty Co., 117 Conn. 505, 507, 508, 169 A. 54. It is a well-settled rule in the construction of insurance policies, that when a policy is " ‘ so framed as to leave room for two constructions, the words used should be interpreted most strongly against the insurer. This exception rests upon the ground that the company's attorneys, officers, or agents prepared the policy, and it is its language that must be interpreted." ’ Rinaldi v. Prudential Ins. Co., 118 Conn. 419, 423, 172 A. 777, 779.

The insured used the X-ray machine for the purpose of diagnosis in his profession, and was skilled in the use of the apparatus. The jury might well have found that what caused the ulceration to appear upon his forefingers was exposure of these fingers to the X-ray a number of times, the cumulative effect of which was to cause the breaking down of the tissue and the appearance of the ulcers. The jury might also have found that there was no intention on the part of the insured in his use of the machine to expose himself to the X-ray to such a degree as to produce injurious consequences. Although the insured used the machine in his business, it was for the jury to determine whether the resulting injury was accidental in the sense of something unexpectedly taking place-not according to the usual course of things-or whether the result was one such as usually follows from ordinary means voluntarily employed. This was a question of fact. United States Mutual Accident Ass'n v. Barry, 131 U.S. 100, 9 S.Ct. 755, 762, 33 L.Ed. 60; 5 Couch, Insurance Law, § 1137.

The defendant cites the definition we gave in Linnane v Ætna Brewing Co., 91 Conn. 158, at page 162, 99 A. 507, 509, L.R.A. 1917D, 77, where we said: " An accidental bodily injury may therefore be defined as a localized abnormal condition of the living body directly and contemporaneously caused by accident; and an accident may be defined as an unlooked-for mishap or an untoward event or condition not expected." In that...