DocketNumber： No. 7511
Citation Numbers： 6 Ohio Law. Abs. 168
Judges： Levine, Sullivan, Vickery
Filed Date： 12/5/1927
Status： Precedential
Modified Date： 10/18/2024
OPINION OF COURT.
The following is taken, verbatim, from the opinion.
Error is charged, because of the directing of this verdict, and two reasons are given.
First: that the facts doi not establish an accidental freezing.
Second: that under paragraph A of the policy and the admitted facts, no liability arises Paragraph A is as folows:
“TOTAL ACCIDENT DISABILITY — A”
“At the rate of $35 per month for the period not exceeding five consecutive years, that bodily injuries effected during the life of this policy, solely through external, violent and accidental means, shall, directly and independently of all other causes, wholly and continuously, from date of accident, disable and prevent the insured from performing every duty pertaining to his business or occupation and require and receive at least once in each seven days the attendance of a legally qualified physician or surgeon, but' shall not result in any of the losses mentioned in paragraph “C.”
The -first claim is that the freezing- of the fingers was not accidental. This cour-t has heretofore- defined what an accident was under the'terms of -an-insurance-policy,-and it again cites -the following cases: Burkhard v. Travelers' Ins. Co. 102 Pa. 262, 48 Am. Rep. 205; N. A. Life & Acc. Ins. Co. v. Burroughs, 69 Pa. (19 P. F. Smith) 43, 8 Am. Rep. 212; Aetna
It is our holding- that, under the facts in the case, the injury was due to accidental means, and the basis of our finding are the above authorities. Had the plaintiff’s fingers come in contact with a hot iron without any volition and in an unusal and unexpected manner, there would he no question but what the injury resulted from accidental means. There is no evidence that he was reckless in caring for himself as much as possible while he was performing his work in freezing cold weather. Hence, we think, under the record, that the injwy resulted from accidental means. It further appears, referring again to paragraph A of the policy, that the result of the accident disabled and prevented the insured from performing every duty pertaining to his business or occupation, which was that of a driver of a coal wagon and a heaver of coal.
It is claimed, however, that inasmuch as under paragraph A the injuries must be such that they required and received, at least once in each seven days, the attendance of a legally qualified physician or surgeon, that there is no liability and can be no recovery, because the evidence is silent as to that part of paragraph A just quoted, but under the record, however, it appears that when the fingers of the hands healed, there was no necessity for surgical attention every seven days. This clause is unreasonable because his recovery would depend, after the loss of his fingers, which disabled and prevented him from following his calling, upon his requiring and receiving surgical attendance every seven days when it was not necessary.
Referring again to the question as to whether the injury was caused by accident, we add that unquestionably all cases of freezing are not necessarily accidents. If the insured had imperiled himself in weather that was unusually cold or extremely severe and to the extent that its severity would be sufficient notice of its danger, then it might be said, and could be said with reason that the injury was not caused by an accident, but there is no such situation appearing in the present record, and it would be absurd so to claim, as one of the reasons that the wheel of the wagon sunk was because of the unfrozen condition of the highway.
The judgment of the lower court is hereby affirmed.