APPEAL from a judgment of the Superior Court of the County of Yavapai. H. K. Mangum, Judge. Judgment reversed and case remanded with instructions.
Messrs. O'Sullivan & Morgan, Mr. J. H. Morgan and Mr. E. C. Locklear, for Appellant.
Mr. Theodore G. McKesson, Mr. W. E. Patterson, Mr. I. Eastvold, Miss M. E. Darrow and Mr. Yale McFate, for Appellee.
[56 Ariz. 72] LOCKWOOD, J.
Kenneth Dickerson, hereinafter called plaintiff, brought this action against Hartford Accident and Indemnity Company, a corporation, hereinafter called defendant, to recover on an accident policy issued by it in favor of plaintiff. The case was tried before a jury, and at the close of plaintiff's case the court instructed a verdict in favor of defendant, whereupon the case was brought before us for review.
While there are several assignments of error, the only question necessary for us to consider on the appeal is whether there was sufficient evidence presented by plaintiff to take the case to the jury, for if there was, the court erred in directing a verdict.
Plaintiff's evidence, briefly summarized, may be stated as follows: On May 12, 1938, he was traveling between Tucson and Safford, and had a blowout on the right front tire of his automobile. He started to change the tire, and while doing so overbalanced and an undue amount of weight was thrown on his left foot. He felt a sharp pain therein and believed that he had wrenched it, but paid no further attention to it and finished changing the tire. His foot did not bother him during the rest of the day, except that he noticed in walking he favored it to some extent. The next morning the foot was swollen and pained severely, and he called in a doctor. An X-ray was taken of the foot and it was placed in a cast, and he then went to Phoenix and afterwards to Prescott. On May 14th he saw Dr. Lytton-Smith in Ploenix, who cut away a part of the cast and applied a walking iron to the foot, which took the weight of the body off of the foot and placed it upon the iron. He remained in Prescott about a week and then returned to Phoenix and again consulted Dr. Lytton-Smith, entering a hospital in Phoenix on May 22d. At that time he was entirely disabled from any physical activities by reason of the condition of his [56 Ariz. 73] foot. He remained in the hospital from May 22d to June 29th, when he was discharged as being able to get around in a wheel chair, and then returned to Prescott. From June 30th to November 1st he could perform about half of his regular duties. His claim was first for total and then partial disability and medical expenses, up to November 1, 1938.
The policy in question contains the following conditions:
"Hartford Accident and Indemnity Company... insures Kenneth Dickerson... against loss caused directly and exclusively by bodily injury sustained solely and independently of all other causes through accidental means."
"... nor shall this insurance cover death, disability or any other loss caused directly or indirectly, wholly or in part, (1) by ptomaines, (2) by bacterial infections (except pyogenic infections which shall occur simultaneously with and through an accidental cut or wound, (3) by any other kind of disease."
It was the contention of defendant (a) that plaintiff suffered no accidental injury of any nature, within the meaning of the policy, and (b) that even though he did suffer an accident, the injury and disability for which he claims compensation was caused either wholly or in part by some kind of "disease" not covered by the policy.
So far as the evidence of the accident is concerned, we think plaintiff's testimony was sufficient to go to the jury. He stated, in substance, that he was engaged in changing a tire, became overbalanced and threw his ...