98 Pa. Super. 89 | Pa. Super. Ct. | 1929
Argued October 14, 1929. The defendant company's policy insured the plaintiff "against the effect of bodily injury ...... caused solely by external, violent and accidental means." While it was in force, plaintiff strapped a trunk. As he was pulling the strap tight he felt a sliding or pinching sensation in his left groin, which, a day or two later, he found to have developed into a rupture, requiring an operation.
He brought suit on the policy and recovered a verdict. The court subsequently entered judgment for *91 the defendant non obstante veredicto, and the plaintiff appealed.
In Pollock v. U.S. Accident Assn.,
It may be admitted, for the purposes of this case, that the injury was an accidental one, that is, that it happened by chance or unexpectedly; but that is not the test. Was it caused by means which were external, *92 not natural, and which happened by chance or unexpectedly? There is no decision in the appellate courts of this Commonwealth squarely on the point, and the decisions in other jurisdictions are not uniform, but we think the weight of authority and the sounder reasoning are opposed to the appellant's claim.
It is established that the exciting cause of an acquired, as distinguished from a congenital, hernia is generally some strain or over-exertion, "as in lifting a heavy weight, jumping off a high wall, straining (as in difficult micturition), constipation, or excessive coughing. The pressure of the diaphragm above and the abdominal wall in front acting on the abdominal viscera causes a protrusion at the weakest point": 13 Ency. Brit. p. 372 (11th Ed.). The learned counsel for the appellant, in his able and interesting argument, admitted that the hernia was not caused by the trunk strap, or even by the process of strapping the trunk, apart from the internal strain which the insured placed on his abdominal muscles while engaged in that chore. He did not slip or fall or do anything that he had not intended to do, but the results were more than he expected. He did intend to tense his muscles, but he did not purpose doing so to such a degree as to cause a hernia. To us the situation seems no different than it would have been had the insured suffered a hernia while straining in micturition or at stool, without any intervening circumstances. There he would have intended to strain the abdominal muscles in furtherance of his purpose, but not to the extent of causing a rupture. The hernia would have been accidental but it would not have been caused by external and accidental means. The distinction was drawn by the late Judge HENDERSON in Semancik v. Continental Casualty Co.,
So in this case, had the insured while strapping the trunk slipped and fallen, causing the hernia in question, the injury would have been caused by external, violent and accidental means; but when, as here, the operation of strapping the trunk is not interrupted or deflected by some outward happening, but in the exercise of usual and ordinary force results in an unexpected internal strain producing rupture, the occurrence though accidental would not amount to any injury caused by external andaccidental means. "A means is not accidental when employed intentionally, though it produces a result not expected or intended": Maryland Casualty Co. v. Spitz, 246 Fed. 817, 818 (JOHN B. McPHERSON, J.). See also Hesse v. Travelers Ins. Co.,
In the review of the authorities following we shall not include deaths by accidental drowning, by poison accidentally taken, by accidental inhalation of gas, or by snake bite, for all of them come squarely within the combination of external, violent and accidental means. The water, poison, gas, or snake venom causing death or injury were all external or outward means, though their injurious effect may have been internal. The meaning of the policy is that the means which caused the injury must be external — not that the injury must be external: American Accident Co. v. Reigart,
In the following cases cited by appellant a recovery was allowed under the policy:
Hamlyn v. Crown Accident Ins. Co., L.R. (1893) Q.B. 1, where in stooping to pick up a marble dropped by a child the insured dislocated the cartilage of his knee. Lord Esher, M.R. said: "The word `external' is that which caused me most doubt, but I feel sure that in this policy, looking as we are bound to, at the rest of the policy, and the things that are excepted from it, the expression must be taken to mean the antithesis of `internal.' If the injury had happened by reason of something internal it would not be within the policy; but that is not the case, and I think we must say that because the cause of the injury was not internal it must have been external."
Western Commercial Travelers Ass'n v. Smith, 85 Fed. 401 — Blood poisoning following an abrasion of the skin of a toe caused by wearing a new shoe — a distinctly external, abnormal and accidental means.
North American Life Accident Ins. Co. v. Burroughs,
McCarthy v. Travelers Ins. Co., Fed. Cas. No. 8682, where death resulted from the rupture of a blood vessel, caused by swinging Indian clubs for exercise; but in that case the court expressly charged the jury that to justify a recovery they had to find that "there occurred some unforeseen or unexpected circumstance which interfered with or obstructed the usual course of such exercise and ...... thereby produced an involuntary movement, strain or wrenching, by means of *96 which the injury was occasioned;" that "if he voluntarily used [the clubs] in the ordinary way for taking such exercise, without the occurrence of any unusual circumstance interrupting or interfering with such use, or causing any unforeseen, accidental or involuntary movement of the body, and in such use of the clubs there occurred the rupture of a blood vessel and consequent injury as claimed, I do not think it could be said that the means through which the injury was effected were accidental."
Miller v. Fidelity Casualty Co., 97 Fed. 836, where the insured died from eating certain hard pointed and resistant substances of food which perforated his intestinal canal. Here, again, the means were clearly external.
Atlantic Accident Ass'n v. Alexander,
McGlinchy v. Fidelity Casualty Co.,
In the following cases, under somewhat similar circumstances, a recovery was denied:
Scarr v. General Accident Assurance Corp. L.R. (1905) 1 K.B. 387, where death was due to dilation of the heart resulting from the insured's exertion in ejecting a drunken man from his master's premises. BRAY, J., said: "The injury to the heart, which I assume to be bodily injury, seems to me to have been caused by the violent exertion, and the violent exertion was intended and not accidental. There was no slip or fall or blow. He intended to push and pull, and he pushed and pulled." *97
Hastings v. Traveler's Ins. Co., 190 Fed. 258 (1911), dilation of the heart following the raising and lowering of the body by the use of the hands and arms alone, while sitting in a chair.
Maryland Casualty Co. v. Spitz, 246 Fed. 817 (McPHERSON, J.). Insured rubbed scab on back of neck, breaking it and causing erysipelas, from which he died.
Shanberg v. Fidelity Casualty Co., 158 Fed. 1. Death from over-exertion in carrying a heavy cellar door for several city blocks.
Fidelity Casualty Co. v. Stacey, 143 Fed. 271. Blood poisoning following abrasion of knuckle in voluntary assault.
New Amsterdam Casualty Co. v. Jones,
Husbands v. Indiana Traveler's Acc. Assn.,
Schmid v. Indiana Traveler's Acc. Assn., 85 N.E. 1032 ( Ind. App. 1908) — paralysis of heart following the climbing of the steps of a hotel in a high altitude while carrying two heavy satchels.
Fane v. Assn. Ry. Mail Clerks,
Niskern v. United Brotherhood, etc.,
Appel v. Aetna Life Ins. Co.,
Rock v. Travelers Ins. Co.,
Ogilvie v. Aetna Life Ins. Co.,
Olinsky v. Ry. Mail Assn.,
Lehman v. Accident Assn.,
Clarkson v. Union Mut. Co.,
Feder v. Iowa State Traveling Men's Assn.,
Smouse v. Iowa State Traveling Men's Assn.,
Cobb v. Accident Assn.,
Pledger v. Business Men's Accident Assn.,
We are of the opinion that in the circumstances here present, the insured did not prove that his injury was caused solely by external, violent and accidental means, and therefore did not bring himself within the provisions of the policy so as to justify a recovery.
The judgment is affirmed.