Salzer v. Milwaukee Insurance

25 A.D.2d 802, 269 N.Y.S.2d 313, 1966 N.Y. App. Div. LEXIS 4399

Opinion

Taylor, J.

Appeal by defendant from a judgment of the Supreme Court entered upon a jury verdict in favor of plaintiff. Defendant issued its policy of disability insurance which excluded coverage for “ disability * *:s * caused or contributed to by disease or infection whether the disease or infection is the primary or contributing cause ”. Plaintiff, a chef, was injured on July 6, 1962 when struck on both shins by a door blown from an exploding stove in the hotel kitchen where he was employed and, as a result of the blow, was later disabled. He had suffered varicosities of the veins of his legs for at least a year prior to the accident. His family physician and the surgeon who performed bilateral ligations of the vessels of his legs testified that varicose veins are classified as a disease, the latter describing the condition as tending to be progressive and resulting at times, because of interference with the blood supply, in the breakdown and ulceration of the skin. The medical evidence is all to the effect that the pre-existing condition contributed to plaintiff’s disability. Upon this record it must be concluded that his disablement was the result of the combined effects of accident and a preexisting disease. For this reason the claim for benefits is brought within the exclusionary clause of the policy and defendant’s motion for a directed verdict should have been granted. (Saul v. New York Life Ins. Co., 14 A D 2d 452, mot. for lv. to app. den. 10 N Y 2d 707; Mc Martin v. Fidelity & Cas. Co., 264 N. Y. 220, mot. for rearg. den. 264 N. Y. 671.) Judgment reversed on the law and the facts, and complaint dismissed, without costs.

Gibson, P. J., Herlihy, Reynolds and Aulisi, JJ., concur.