April 22, 1924.
Before MAULDIN, J., York, February Term, 1923. Reversed and remanded.
Action by Alex E. Young against the Continental Casualty Company. From a judgment entered on a directed verdict for plaintiff, defendant appeals.
Messrs. Spencer White, for appellant, cite: Accident and injury: 14 R.C.L., 1238-39; 70 Am. St. Rep., 212; 108 N.E., 296; 190 Fed., 258; 156 Pac., 1029; 34 Conn., 574; 91 S.E., 228; 85 N.E., 1032; 78 N.W., 252; 198 S.W., 1163; 182 S.W. 262; 1 Ann. Cas., 787; 29 Scot., L. R., 303. Construction of evidence in behalf of defendant on motion for a directed verdict by plaintiff: 113 S.E., 490. Nonsuit: 89 S.E., 482.
Messrs. Dunlap Dunlap, for respondent, cite: Accident: 48 Am. Rep., 205; 86 Fed., 282; 76 N.W., 683; 30 S.E., 939; 76 N.C. 320; 46 Fed., 446; 17 South., 2. Accident exclusive of negligence: 6 Cush (Mass.), 292; (C. C.) 45 Ed., 851; 25 Pac., 777; 45 S.W. 550; 13 Ill., 585; 1 Am. Rep., 157; Black's Law Dict., 2d Ed., 15; 1 C.J., 309, 392, 394, Note; 34 S.E., 113; 36 S.W. 169; 40 S.C. 345. Powers of Court to direct a verdict: 79 S.C. 338; 60 S.C. 705; 71 S.C. 426; 37 S.C. 417. Motion to direct a verdict: 68 S.C. 466; 68 S.C. 184; 61 S.C. 569; 63 S.C. 439; 37 S.C. 417.
April 22, 1924.
Action to recover $175.00 indemnity under a policy of accident insurance. From a direction of verdict for plaintiff, defendant appeals.
The policy insured the plaintiff against "loss of life, limb, sight or time, resulting, without other contributing cause from personal bodily injury, which is effected solely by the happening of a purely accidental event."
The plaintiff's account of the circumstances attending the injury for which he claims indemnity is as follows: He was a pharmacist working in a drug store. Having occasion to get a book down from a high shelf, he mounted the counter, and in reaching for the book felt a stinging pain in his groin. He did not slip or fall; and, while he testified that the act of climbing and reaching was an unusual strain, it is not clear whether he referred to his usual employment or meant to say that there was an unusual strain in that particular incident. He got down from the counter, continued his usual employment, and three days later went to Charlotte, where it was discovered he had hernia, and was operated upon for it.
Passing by the question whether or not the injury was the result of an accident, within the terms of the policy, the case involved issues of fact which rendered the direction of a verdict for the full amount claimed in favor of the plaintiff improper.
The plaintiff's admission is that three years before he sustained a strain while lifting a box; that he consulted a physician; that he (the plaintiff) did not believe at that time that he had been ruptured, but that "there was absolutely no evidence of hernia from the time I said I thought it made its appearance [that is, 3 years before] until about six months ago when I hurt myself trying to lift a box"; that is to say, upon the latter event there was evidence of hernia.
In view of the provision in the policy that the injury must have been received, not only as the result of an accident, but "without other contributing cause," and in view of the admission of the plaintiff, that issue clearly should have been submitted to the jury. Besides, assuming that there was an unusual strain in this particular incident, it may not have been such as to injuriously affect one in ordinary condition; the jury may have inferred that the injury was the result of the weakness or disease which the plaintiff admits was present at least six months before.
"So, if a person suffering from some weakness or disease should subject himself to conditions which would not injuriously affect persons in ordinary health, but should be dangerous to him, and injury result, it would not be due to an accidental cause."
Judgment reversed, and new trial ordered.
MESSRS. JUSTICES FRASER and MARION concur.
MR. JUSTICE WATTS dissents.