Summary
In Thalassinos v. Massachusetts Accident Co., 84 N.H. 261, 149 A. 512, plaintiff's petition charged that a physician so carelessly, negligently and unskillfully applied and administered certain electrical treatment that the plaintiff received severe burns, causing disability as described in the policy.
Summary of this case from Mulloff v. Natl. Acc. H. Ins. Co.Opinion
Decided March 4, 1930.
A policy insuring against damage through "loss of time . . . resulting . . . from bodily injury . . . caused solely through external, violent and accidental means" covers burns received from the negligent ministration of electrical treatment by a physician.
ASSUMPSIT, to recover upon a policy of accident insurance.
The declaration alleges the issuance of a policy insuring the plaintiff against damage through "loss of time from his ordinary business pursuits, resulting directly and independently of all other causes from bodily injury sustained during the life of said policy, caused solely through external, violent and accidental means"; that in the course of the application of electrical treatment for neuralgia, a physician "so carelessly, negligently and unskillfully applied and administered said electrical treatment that the plaintiff received severe burns," thereby causing the disability described in the policy.
The defendant demurred, assigning for cause that the injury set forth in the declaration was not one "resulting directly and independently of all other causes from bodily injury . . . caused solely through external, violent and accidental means."
The superior court (Oakes, J.) overruled the demurrer and transferred the case upon the defendant's exception to that ruling.
Henry N. Hurd, for the plaintiff.
Barton Shulins, for the defendant.
The declaration states a case. All of the three elements stipulated in the policy are alleged. The means were external; the cause came from without. Application of sufficient heat to cause severe burns can hardly be deemed to be other than violent. And the happening was accidental. The physician intended to apply a proper amount of heat only. Through his negligence he made an excessive application. This is as much an accident as though he had carelessly dropped a red hot iron upon his patient.
It is not even necessary to invoke the rule of construction which has here been applied to fire insurance policies (Watson v. Insurance Co., 83 N.H. 200), and which is equally applicable to those insuring against accident (Lewis v. Corporation, 224 N.Y. 18). Upon any rational interpretation of the terms used to describe the risks insured against, the policy covered the plaintiff's misadventure.
Exception overruled.
All concurred.