This is а suit brought on an accident insurance contract issued by the Travelers Protective Association of America, a fraternal benefit society, commonly known as the T. P. A., with headquarters at St. Louis, Missouri. The appellee recovered a verdict of $2,687.12 for the loss of his left eye through accidental means. The motion for a new trial wаs overruled, and an attorney’s fee of $270 was taxed as part of the costs.
The evidence discloses that on May 23, 1930, appellee employed a carpenter to raise, remove, repair, and replace a set of five steps, weighing probably 400 pounds, in front of his residence at 1524 Washington street, Lincoln, and, in assisting the carpenter to lift up this heavy flight of five steps, and endeavoring to reach a 2 by 4 to place under them as a brace, Mr. Bennett strained himself quite severely. He doеs not recall whether he read the evening paper that night or not, but in the morning he found the sight in his left eye blurred, and, upon examination by an oculist, he was told to go home аnd go to bed for three weeks. His difficulty was diagnosed as a detachment of the retina, which caused the entire loss of the sight in his eye, and three months later he was comрelled to have the eye removed. The certificate of insurance in the appellant organization provided for a payment of $2,500 for the loss of onе eye by accident. The judgment is attacked on the ground that under these facts such eye was not destroyed by “accidental means,” as the decisions exclude results which follow acts intentionally
The appellee testified that, at one particular time, when the old steps were tilted up on edge at a 45-degree angle, and as he was reaching for the brace, he made, a superhuman effort to keep the steps from slipping, and that that was the time the strain occurred, and the medicаl testimony indicates that when there is an extra strain the eyeball often contracts in such a way that the fluid in the eyeball is forced under the retina, and in such area of thе retina as is detached there is no sight. There are two causes which bring about this result, disease and a physical strain, and the medical testimony of the appellee indicated that the strain caused by lifting and reaching might have caused this loss of the sight of the eye. Upon June 6 following the accident, Mrs. Bennett wrote to the appellant association, advising it that Mr. Bennett was in bed and having trouble with his eye, and “that the retina had become almost entirely detached. * * * Mr. Bennett does not know whether he is entitlеd to anything under his policy or not. He is perfectly well, so apparently disease was not the cause of this trouble and yet he cannot point out a specifiс accident. I am writing you simply to place the matter before you just as it is.” In this letter she gave the association the name of the oculist who was treating him. Ten days latеr she described the work that Mr. Bennett had done with the carpenter, and stated: “The doctors believe that his trouble started the afternoon before, while working with the cаrpenter.”
It is sometimes a disputed question whether an “accident” has occurred, for it is not every trivial mishap or occurrence that the insured must, under such a poliсy, regard as an accident. George v. Aetna Casualty & Surety Co.,
In discussing the term “accidental means,” as used in policies of insurance, we must interpret such term according to the usage of the ordinаry man, and to eliminate all of those cases where the injury happened as a foreseeable result of an event voluntarily set in motion is
In the case of Lewis v. Ocean Accident & Guarantee Corporation,
It is but natural to find, in such a closely contested
Accidental means include those which produce effects which are not their natural, probable, or expected consequences, and this court has passed upon a somewhat similar case, where a plaintiff picked up a dumb-bell, said to weigh 450 pounds, which got out of balance by his failure to hold it in the center of gravity, and, in a great exertion to get it balanced, one of the ligaments of his back gave way, and Judge Sullivan, in deciding the case, held in Rustin v. Standard Life & Accident Ins. Co.,
Appellant insists that instruction No. 4 eliminated the quеstion whether the injury was caused by accidental means, and told the jury that there was an accident as a matter of law, and that for such error this case should be revеrsed. Yet the first sentence of this instruction reads as follows: “You will therefore immediately turn your attention to the question of whether or not the plaintiff suffered an accidеnt in moving the steps or stairs described in the petition and if so whether said accident was the sole and independent cause of the loss of his left eye, and whether it occurred by external and violent means.” We find no error in this instruction or any of the others.
The insured was in good health; the evidence discloses no disease which could cause the injury to the retina. The medical testimony shows that a strain of the nature which occurred in this case may. cause the exact displacement of the retina whiсh occurred in this case. Many authorities cited hold that this would be an accident. The jury were justified, under the evidence and the instructions, in finding a verdict for the appellee. There being no error in the record, the judgment of the district court is affirmed, and an additional attorney’s fee of $100 is taxed in this court.
Affirmed.