192 A. 311 | Conn. | 1937
Lead Opinion
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 *3
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,
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 8th, 1936, *4 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 $1235 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.,
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 Asso. v. Barry,
The defendant cites the definition we gave in Linnane v. Aetna Brewing Co.,
The defendant does not claim that the burning by the X-ray machine which the plaintiff suffered would not fulfil the requirement that the accidental means be external and violent. The ulcerations upon the plaintiff's fingers certainly constituted a bodily injury; that is, in the language of the Linnane case, "a localized abnormal condition of the living body." And such disability as the plaintiff suffered might well have been found to be due to the ulcerations. Whatever conditions preceded them are not of consequence except as regards the policy requirements that they came about through accidental means. Fogarty v. Fidelity Casualty Co., supra, p. 301. The exposure of the plaintiff's fingers was an accident within the definition in the Linnane case; it was "an untoward *7
event or condition not expected," just as much as the exposure in that case was stated to be an accident resulting in exhaustion, or the weather conditions which produced the frost bite in Larke v. John Hancock Mutual Life Ins. Co.,
The jury might reasonably have further found that the amount of tolerance to exposure to the X-ray without injurious effect varies with the individual. Until the breaking down of the tissues appeared, it was not perceptible that there had been an overexposure or too frequent exposures. The unexpected and unanticipated event in this case was not the exposure to the X-ray, but the overdose of it producing the ulcers on the plaintiff's fingers, which resulted from almost daily use, too long continued. The jury could reasonably have found that after the continued day by day exposure of his fingers to the destructive force of the X-ray at first made them sore from the incipient overdose, the actual breakdown of tissue evidenced by ulcers, which ensued a few days later as a cumulative result following the subsequent exposures, marked the date of the accident. There was *8 also evidence from which the jury could have determined that there was continuous partial disability from that date.
The defendant places much reliance upon the case of Southard v. Railway Passengers Assurance Co.,
There is no error.
In this opinion BANKS and BROWN, Js., concurred.
Dissenting Opinion
I agree that the ulceration of the plaintiff's fingers was a bodily injury effected through accidental means within the coverage of the policies in question. I also agree with the proposition upon which the majority opinion is, as I understand it, based, that a recovery for losses due to the injury would be proper under the policies only if a disability from the injury began at the date of the accident, in this case the over-exposure of the plaintiff's fingers to the X-rays. I am not able to agree that, upon the evidence, the jury could reasonably *9 have reached the conclusion that the injury was the result of a continuous process of over-exposure extending to the time when disability occurred. The farthest the evidence, reasonably construed, went, was to afford a basis for a finding that there had been over-exposure at some particular time or times previous to the manifestation of any injury to the fingers, leaving entirely uncertain how long before the injury the exposure or exposures had occurred. The evidence did not afford a basis for a reasonable conclusion that the injury produced disability from the date of the accident.
In this opinion HINMAN, J., concurred.
