133 Tenn. 672 | Tenn. | 1915
delivered the opinion of the Court..
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,
“Complainant would now show the court that some time in November, 1913, he went to Nashville, Tennessee, 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 twelve 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 his system. Complainant took a dose of this medicine on the morning of the third of December before supper (breakfast) 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*675 condition obtained until Thursday, when complainant was lying on the bed, and had had a short nap up to about eight 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 un
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 & Casuality 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. Trav-cling 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.
In the foregoing cases no liability was fonnd, 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 fallen nor received any shock, blow, or jar, and there was nothing unusual in the manner of' carrying the baggage or his movement while so doing. It was -considered that the means producing the injury were not accidental.
In Feder v. Iowa St. Traveling Men’s Ass’n, supra, a rupture of an artery occurred while the insured was reaching in an ordinary way over a chair to close some-window shutters, and he did not fall or lose his balance. Everything was done as was intended. It was held the rupture was not sustained through accidental ■ mehns.
The same doctrine is announced in other cases, but a recovery had because the injury was sustained through accidental means. These cases are Standard Life & Acc. Ins. Co. v. Schmaltz, 66 Ark., 588, 53 S. W., 49, 74 Am. St. Rep., 112; Atlanta Acc. Ass’n v. Alexander, 104 Ga., 709, 30 S. E., 939, 42 L. R. A., 188; McGlinchey v. Fidelity & Casualty Co., 80 Me., 251, 14 Atl., 13, 6 Am. St. Rep., 190; Reynolds v. Equitable
The following authorities are in conflict with those above cited: North American L. & A. Ins. Co. v. Burroughs, 69 Pa., 43, 8 Am. Rep., 212; Horsefall v. Pacific Mut. L. Ins. Co., 32 Wash., 132, 72 Pac., 1028, 63 L. R. A., 425, 98 Am. St. Rep., 846; Young v. Railway Mail Ass’n, 126 Mo. App., 325, 103 S. W., 557; Rose v. Commercial Mut. Acc. Co., 12 Pa. Super. Ct., 394; Patterson v. Ocean Acc. & Guaranty Co., 25 App. D. C., 46.
Now, looking to the particular facts here alleged, we find the cause alleged to have produced the injury was a natural and ordinary movement. Complainant was lying quietly on the bed, and called to his wife to bring him the ‘Nashville Banner that he might read it. He 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. He was informed by his physician that the loss of the eye was due to the fact that in his weakened condition, resulting from the purgative he had taken, he raised his hand suddenly to get the paper, and that his blood pressure was
The position here taken is not in conflict, as we view it, with the opinion of our court in Insurance Co. v. Bennett, 6 Pick. (90 Tenn.), 256, 16 S. W., 723, 25 Am. St. Rep., 685, when the facts of that case are properly considered.
We deem it unnecessary to pass upon the next point, raised by demurrer, namely, that if the injury may be said to have resulted through accidental means, yet it did not so result ‘ ‘ directly, independently, and exclusively of all other causes.” The learned chancellor sustained the demurrer in this re- ' spect also, and there is strong authority for his position. But, inasmuch as the foregoing is decisive of the case, and the question of proximate cause and what
Affirmed.
