Thompson v. General Ins. Co. of America

• Jurisdiction: Oregon
• Parties: Joseph R. THOMPSON, Appellant, v. GENERAL INSURANCE COMPANY OF AMERICA, a corporation, Respondent.
• Citation: 226 Or. 205,359 P.2d 1097
• Court: Oregon Supreme Court
• Decision Date: 21 February 1961

Page 1097

359 P.2d 1097

226 Or. 205

Joseph R. THOMPSON, Appellant, v. GENERAL INSURANCE COMPANY OF AMERICA, a corporation, Respondent.

Supreme Court of Oregon.

Argued and Submitted at Pendleton, Nov. 1, 1960.

Decided Feb. 21, 1961.

James A. Cox, Ontario, argued the cause for appellant. With him on the brief were Yturri & O'Kief, Ontario.

David C. Silven, Baker, argued the cause for respondent. On the brief were Banta, Silven, Horton & Young, Baker.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and KING, JJ.

ROSSMAN, Justice.

This is an appeal by the plaintiff, Joseph R. Thompson, from a judgment notwithstanding the verdict, which the circuit court entered in favor of the defendant General Insurance Company of America upon the latter's motion. The plaintiff was an employee of a partnership known as Wendt Bros. which was engaged in ranching operations and which was the insured in a policy issued by the defendant's predecessor. The policy provided that the insurance company would pay the amount designated in it to any employee of Wendt Bros. who sustained bodily injury or sickness 'caused by accident' and arising out of and in the course of his employment. The defendant and its predecessor have merged and the defendant has assumed all of the contractual duties of its predecessor.

Tuesday morning, June 25, 1957, the plaintiff, as an employee of Wendt Bros., endeavored to break a horse to harness. The work required vigorous effort. At 11:30 that morning, after the work had continued for about one and one-half hours, the plaintiff discontinued it, unharnessed the horse, returned him to the barn and then ate his noonday meal. About an hour later he experienced pains in his chest and shortness of breach. Presently he was taken to a physician who subsequently diagnosed his condition as a coronary thrombosis resulting in heart muscle degeneration, that is, weakening. The plaintiff's (appellant's) brief speaks of his condition as 'a coronary thrombosis resulting in a myocardial infarction.' Neither his physician nor any other witness employed the term 'a myocardial infarction.' The plaintiff contends that his illness resulted from an accident within the contemplation of the policy which provides that the defendant will:

'* * * pay to or for each person described below who sustains bodily injury, sickness, or disease, caused by accident, the reasonable expense incurred within one year from the date of accident for necessary medical, dental, surgical, ambulance, hospital, professional nursing and funeral services:

'(a) (Employees) each employee of the named insured as to any accident arising out of and in the course of his or her employment during the prosecution of farming or ranching operations * * *.'

The main issue is whether the record discloses that the physical disability of which the plaintiff complains resulted from an accident within the purview of the provision just quoted. The defendant stipulated that if the plaintiff is entitled to recovery he may have judgment for the maximum amount provided by the policy--$1,000.

The trial judge granted judgment to the defendant notwithstanding the verdict because of a belief that the record contained no evidence revealing an accidental cause for the plaintiff's illness.

The first assignment of error reads:

'The Court erred in granting defendant's motion for judgment notwithstanding the verdict and in entering a judgment for the defendant.'

The appellant's (plaintiff's) brief, referring to that assignment of error, acknowledges that the principal question in the case is whether the plaintiff sustained the coronary thrombosis as the result of an accident which befell him while he was in the employ of Wendt Bros. The defendant does not challenge the evidence which indicates that the plaintiff suffered a coronary thrombosis, but argues that the record is devoid of proof indicating that an accident occurred to the plaintiff.

Dr. Fletcher Campbell, the physician who treated the plaintiff, testified that medical science recognizes that physical exertion may produce a coronary thrombosis. He explained:

'* * * Now, under the effective exertion, particularly a combination of heavy physical exertion, plus emotional tension, the blood-pressure immediately goes up, the heart rate becomes more forceful as the blood-pressure goes up, and one of these small blood-vessels reptures and breaks, and it causes the lining of this main blood-vessel to be indented thusly. A big blood-clot forms underneath there. * * *' He added, 'there is no doubt at all but what the events of the few hours preceding my seeing him caused the coronary thrombosis.' No other physician testified.

We will now take note of the events that occurred while the plaintiff was attempting to break the horse to harness.

The plaintiff, 62 years of age, had worked upon ranches since he was 15 years old. As a boy he had seen his father and uncle break horses. He estimated that he himself had 'broken close to a couple hundred' horses and deemed that he was familiar with the methods used in that line of endeavor. His normal employment consisted in working about horses, but during the haying season he had entered the employment of Wendt Bros. and incidental thereto agreed to break to harness two of their horses. One of the two was black in color and weighed 1,500 to 1,600 pounds. The other was a sorrel horse and weighed 1960 pounds. Both were six years of age and both had been 'broken to lead,' that is, they could be led by a halter. The plaintiff found them more gentle than he had expected. According to him, those who break a horse hitch him to a wagon along side of a well broken horse because the latter 'will mind and hold the other horse.' In the instance in question a wagon was obtained from a neighbor by the name of Fred Widman who also loaned to the Wendt Bros. for the occasion in question a broken horse about 12 or 13 years of age which weighed 1,550 to 1,600 pounds. Its name was Snip. Mr. Widman testified that Snip had helped to break several other horses.

On a Monday morning the plaintiff hitched the black horse, which he was hired to break, to the wagon and also Widman's broken horse (Snip). He then drove the team thus hitched many times around a pasture nine or ten acres in extent which was owned by the Wendts. Nothing untoward happened. At the end of those efforts the plaintiff unharnessed the team and after placing the harness upon the sorrel horse undertook to hitch it to the wagon. According to him, the sorrel horse was 'a snappy horse with a lot of action.' Presently he made a lunge, broke the wagon's tongue, and the efforts were brought to a close for the day. The next morning, being Tuesday morning, the plaintiff again placed harness upon Widman's black horse, Snip, and then upon the sorrel horse. He next hitched them to the wagon. Mr. Widman assisted and after the horses had been hitched seated himself in the wagon beside the plaintiff. A 16 year old boy by the name of Roger Thompson also entered the wagon; then the team was started around the pasture. The pasture, the wagon and the broken horse were the same that had been used on Monday. According to the plaintiff, the sorrel horse 'was not a usual horse to me.' He added, 'They wouldn't run as long as he did. * * * I never did break a horse as large as this horse before that had the action.' After they had circled the pasture for about a half hour, starting and stopping intermittently, Mr. Widman left; thereupon a friend of the plaintiff, Chuck Searles, came to the pasture and took the seat that Widman vacated. By this time, so the plaintiff swore, the action of the sorrel horse had frightened Widman's horse and command over the two became more difficult. He thought that the broken horse (Snip) was not holding the unbroken one sufficiently in check. The plaintiff testified that he was compelled to pull upon the reins with all his strength in order to control the team. He stated that the horses would run for three or four minutes, stop for five to ten minutes and then run again. Steering the team, so that it would not collide with obstructions in the pasture, such as a fence and a chicken house, was difficult; however, it was successfully performed. The plaintiff acknowledged that the horses did not escape from his control. The wagon did not tip over and neither he nor either of the other two occupants fell from it. At 11:30 a. m. the efforts were discontinued, the plaintiff removed the harness from the horses and placed the team in the barn.

The plaintiff acknowledged that breaking a horse to harness always requires tugging and pulling on the reins. He explained that the amount of the tugging and pulling 'depends on the horse.' He added that no two horses are 'hardly alike.' Continuing, he declared that in breaking a horse 'there is quite a little excitement.'

We also take the following from plaintiff's testimony:

'Q. When you break a horse to harness, you know if you want to stop the horse you have got to pull on the lines until he stops? A. Yes. You can't stop an unbroke horse by pulling on the lines. That's why you need a good broke horse that will mind and stop.

'Q. And you know you are going to have to brace yourself whenever you are breaking horses to harness, don't you? A. What do you mean, 'brace yourself'?

'Q. Well, first you brace yourself so you won't fall off. A. Oh yes, sure.

'Q. Or be bounced off. A. Yes.

'Q. If you are going to drive, you have got to pull on the lines and hang on. A. Yes.

* * *

* * *

'Q. About the only difference is that one horse might run longer than the next one, isn't that about it? A. That's right. One might take longer. One might be harder to hook up.

'Q. But the big difference is, if there is any difference at all, one horse might run a little longer than the next one, isn't that right? A. Yes, they can.

'Q. Isn't it a fact, the only thing that happened to you...