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KILGORE v. RESERVE LIFE INS. CO.

April 1, 1957

JOE C. KILGORE, RESPONDENT,
v.
RESERVE LIFE INSURANCE COMPANY, APPELLANT.



The opinion of the court was delivered by: Oxner, Justice.

April 1, 1957.

This is a suit to recover disability benefits under a policy insuring respondent, Joe C. Kilgore, "against loss of life, limb, sight or time resulting directly and independently of all other causes from accidental bodily injury sustained while this policy is in effect." It resulted in a verdict for respondent in the sum of $2,375.00, representing disability benefits, at the policy rate of $100.00 monthly, from the date of the accident to the commencement of this action. The only question we need consider is whether the Court erred in refusing appellant's motion for a directed verdict upon the ground that the accidental injury suffered by respondent was not the sole cause of his disability. Appellant claims that he had a pre-existing arthritic condition "which contributed to or cooperated with the injury and caused the disability."

Respondent's occupation is that of textile worker. The policy involved in this action was issued on March 24, 1953. Respondent was then 59 years of age. On January 13, 1954, while working at the Orr Mill at Anderson, he slipped on a wet floor and fell on his back. Another employee assisted him in getting up. He was then taken to the office of a local physician. An x-ray of his back was made the following day. He was treated by several physicians. The severe pain in his back continued. Finally, in September, 1954, he was sent to Dr. Huff, an orthopedic surgeon of Anderson, and has since been under his care. Respondent was never able to resume his work at the mill. The evidence reasonably warrants a conclusion that he has been totally disabled since the accident.

Respondent was apparently in good health and worked regularly prior to the accident. He says that his back had never given him any trouble before and that he was unaware of any arthritic condition or other infirmity.

The only other witness in the case was Dr. Huff. He says that his examination disclosed "arthritic changes in the whole lumbar region", and that "there were marks on the fifth lumbar space and what appeared to be degenerated impetigo disc and arthrosteitis at that level." It was his opinion that this arthritic condition was of long duration and the accidental injury probably caused the arthritis to "flare up". He further testified:

Direct Examination

"Q. Now, if Mr. Kilgore's testimony shows that back at the time he was working in the mill he had been working every day and did not have any trouble with his back, and assuming he did not fall, would he still be able to work, in your opinion, or not? A. I know of no reason why he would not be working. He had been working every day and I don't see why he shouldn't be able to work. I know of no other reason.

"Q. What, in your opinion, caused the trouble that Mr. Kilgore had when you examined him — what caused his trouble? A. Well, it is alleged he had a fall in the mill, and I think the fall, plus the pre-existing osteoarthritis, was the trouble. The fall simply set the arthritis off.

"Q. Then what disabled this man, the arthritis or the fall? A. (Didn't answer.)

"Q. In other words, he had been working up to the time he fell. A. I would say the fall disabled him.

"* * *."

Cross Examination

"Q. The fall aggravated the arthritis, and the fall disabled him, and he is now suffering from arthritis, isn't that right, doctor, that is what you ...


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