The opinion of the court was delivered by: WOOD
Plaintiff, Sidney E. Lewin, recovered $33,700 plus interest at trial against defendant, Metropolitan Life Insurance Company, under two insurance policies for disability and specific loss benefits. Defendant has filed a motion for judgment notwithstanding the jury verdict or in the alternative for a new trial.
Plaintiff testified by deposition that while taking a shower in a hotel room on June 7, 1960, he stepped on a sharp object with his right foot, which bled for a time, and he consulted Dr. Waldow on June 18, 1960, 11 days after the alleged event, who called in surgeons, Drs. Stein and Cullen, to care for plaintiff. Lewin was admitted to Jewish Hospital on June 23, 1960. On June 27, 1960, the third and fourth toes on his right foot were amputated; on July 18th, the small toe was amputated; and on July 25, 1960, plaintiff's right leg was amputated above the knee.
Lewin filed a claim with the company under two policies of insurance. Under the 1936 policy, if the provisions had been fulfilled, plaintiff would have received $2,500 for the loss of one foot and $25 per week, up to a maximum of 262 weeks, disability benefits. If the provisions of the 1945 policy had been fulfilled, plaintiff would have received $5,000 for the loss of one foot and $75 per week, up to a maximum of 262 weeks, disability benefits.
The language of the 1945 policy coverage is as follows:
"If, while this policy is in force, the insured shall sustain bodily injuries caused directly and independently of all other causes by external, violent, and accidental means, and if such bodily injuries shall cause, directly and independently of all other causes, any of the results hereinafter enumerated . . . the Company pay . . .
"This policy shall not cover . . . any of the results enumerated . . . which are caused directly or indirectly, wholly or partly, by (f) ptomaine or bacterial infection, exception only septic infection of and through a visible wound caused, directly and independently of all other causes; by external, violent, and accidental means."
The 1936 policy is very similar in coverage.
II. Motion for Judgment n.o.v.
Metropolitan's primary contention is that plaintiff has failed to sustain his burden of proof by not showing that his pre-existing infirmities did not cause, in whole or in part, directly or indirectly, the loss of his foot and his disability.
Plaintiff in such cases must prove that the disability and loss resulted from an external, violent and accidental force and must show causal relationship between the accident and the injuries. In addition, he must show that the death was not produced directly or indirectly by disease or bodily infirmity. O'Neill v. Metropolitan Ins. Co., 345 Pa. 232, 239, 26 A.2d 898 (1942). He is required to exclude as a causative factor all pre-existing and substantial infirmities which may have combined with the accident to produce the loss. Roeper v. Monarch Life Ins. Co., 138 Pa. Superior Ct. 283, 11 A.2d 184 (1940). The accident, in other words, must have been the sole cause of the loss. If disease, however, while existing be but a condition and the accident the moving, sole and proximate cause of the loss, the case is within the coverage of the policy. Foulkrod v. Standard Accident Ins. Co., 343 Pa. 505, 23 A.2d 430 (1942). If a septic infection was the cause of the loss and disability, plaintiff must also exclude all pre-existing and substantial infirmities which may have aided and abetted the infection.
The motion for judgment notwithstanding the verdict must be denied if there is any substantial evidence which would support a verdict. Credibility of witnesses and weight of the evidence are not proper concerns of the court. The evidence must be viewed in the light most favorable to the plaintiff in this case. He must be given the benefit of all legitimate inferences which may be drawn in his favor. Moreover, the motion must be denied if reasonable men might differ as to the ...