Stone v. Fidelity & Casualty Co. of New York

• Decision Date: 17 January 1916
• Citation: 182 S.W. 252
• Court: Tennessee Supreme Court
• Parties: STONE v. FIDELITY & CASUALTY CO. OF NEW YORK.

Page 252

182 S.W. 252

STONE v. FIDELITY & CASUALTY CO. OF NEW YORK.

Supreme Court of Tennessee.

January 17, 1916.

Appeal from Chancery Court, Hamilton County; W. B. Garvin, Chancellor.

Action by J. C. Stone against the Fidelity & Casualty Company of New York. Judgment for defendant sustaining a demurrer to the complaint, and complainant appeals. Affirmed.

Spears & Spears, of Chattanooga, for appellant. Thompson, Williams & Thompson and Creed F. Bates, all of Chattanooga, and James B. Wright, of Knoxville, for appellee.

FANCHER, J.

Complainant sued to recover under the terms of a policy which was to insure him against bodily injury sustained during the term of one year, through accidental means, and resulting directly, independently, and exclusively of all other causes, in immediate, continuous, and total disability. The injury complained of is stated as follows:

"Complainant would now show the court that some time in November, 1913, he went to Nashville, Tenn., to attend the football game between Vanderbilt and Sewanee; that the day was rather cool, and the ground was rather damp; he attended the game on the afternoon of November 27, 1913, and at that time contracted a cold, resulting in lumbago; that he stayed in Nashville all night, and sat up until about 12 o'clock, returning home the next day, the 28th. On the morning of the 28th he awoke with a cold and lumbago, and in the evening came home and went to bed, and was confined to his room and bed for seven consecutive days. He consulted Dr. Mitchell and told Dr. Mitchell that he was going to take some medicine known as `black draught,' thinking by this means to clean out his system, and thus restore his health. This medicine was composed of two-thirds of a pint of whisky and a box of `black draught,' which was a very strong liver medicine. These were poured together so as to make the whole in quantity above one quart. The effect of this medicine was to purge the system. Complainant took a dose of this medicine on the morning of the third of December before supper and continued this treatment, taking it before each meal until the following evening. The consequence of taking this medicine was to debilitate the system, and this resulted in a very weak physical condition. This condition obtained until Thursday, when complainant was lying on the bed, and had had a short nap up to about 8 o'clock. Thereupon he called his wife to bring him the Nashville Banner, and asked her to turn on the light at the head of the bed so that he might read the paper. Complainant then reached for the paper and raised it above his head, and the light was turned on, when he found he had lost the sight of his left eye. On raising his hands he felt some change had come over his left eye. On consulting a physician he was informed that the loss of his left eye was due to the fact that in his weakened condition resulting from the purging of the `black draught,' that he raised his hand suddenly to get the paper, and that his blood pressure was strong and rushed to his head, causing a blood rupture of the retina — that is causing a little clot of blood to rest on the nerve of the eye or in the retina, thereby destroying his sight. Complainant charges that the loss of his left eye resulted wholly from accidental means."

The demurrer which the chancellor sustained raises the point that the injury or disability suffered was caused by sickness or disease, and not through accidental means, resulting directly, independently, and exclusively of all other causes.

The general rule is that an injury is not produced by accidental means, within the meaning of this policy, where the injury is the natural result of an act or acts in which the insured intentionally engages. A person may do certain acts the result of which produces unforeseen consequences resulting in what is termed an accident; yet it does not come within the terms of this contract. The policy does not insure against an injury that may be caused by a voluntary, natural, ordinary movement, executed exactly as was intended.

Therefore, to determine the matter, we look, not to the result merely, but to the means producing the result. It is not sufficient that the injury be unusual and unexpected, but the cause itself must have been unexpected and accidental. In re Scarr, (1905) 1 K. B. 367, 2 B. R. C. 358, 82 L. T. N. S. 128, 21 Times L. R. 173, 1 Ann. Cas. 787; Cledera v. Scottish Accident. Ins. Co., (1892) 19 R. 355, 29 Scott L. R. 303; Smith v. Travelers' Ins. Co. (1914) 219 Mass. 147, 106 N. E. 607, L. R. A. 1915B, 872; Feder v. Iowa St. Traveling Men's Ass'n, 107 Iowa, 538, 78 N. W. 252, 43 L. R. A. 693, 70 Am. St. Rep. 212; Shanberg v. Fidelity & Casualty Co. (C. C.) 143 Fed. 651, affirmed in 158 Fed. 1, 85 C. C. A. 343, 19 L. R. A. (N. S.) 1206; Lehman v. Great West. Acc. Ass'n, 155 Iowa, 737, 133 N. W. 752, 42 L. R. A. (N. S.) 563; Smouse v. Iowa St. Traveling Men's Ass'n, 118 Iowa, 436, 92 N. W. 53; McCarthy v. Travelers' Ins. Co., 8 Biss. 362, Fed. Cas. No. 8,682; Niskern v. United Brotherhood, 93 App. Div. 364, 87 N. Y. Supp. 640; Hastings v. Travelers' Ins. Co. (C. C.) 190 Fed. 258; Cobb v. Preferred Mut. Acc. Ass'n, 96 Ga. 818, 22 S. E. 976; Travelers' Ins. Co. v. Selden, 78 Fed. 285, 24 C. C. A. 92; Southard v. Railway Passenger, etc., Co., 34 Conn. 576, Fed. Cas. No. 13,182.

Attention is especially directed to the very excellent notes on the subject in 42 L. R. A. (N. S.) 563, and 1 Ann. Cas. 787. These notes illustrate the subject by statements of the facts.

In the foregoing cases no liability was found, because the injury was not produced by accidental means.

In Cobb v. Preferred Mut. Acc. Ass'n, supra, the plaintiff was in a feeble condition, and in carrying his baggage a short distance it was found that his eye was affected, finally resulting in blindness. The plaintiff had not...