Kendall v. Travelers' Protective Ass'n

HARRIS, J. There have been two trials, with a judgment for the plaintiff in each instance. The [574] first verdict and judgment were set aside by tbe circuit judge and a new trial granted, and upon an appeal the order granting the new trial was affirmed: Kendall v. Travelers’ Protective Assn., 87 Or. 179 (169 Pac. 751). The case is now here on appeal from the second judgment. There are two assignments of error. The court refused to give the following instruction requested by the defendant: ‘ ‘ The jury is instructed that if plaintiff directed the barber to remove the ingrowing hair from his chin, and the barber proceeded to remove the hair under instructions from plaintiff, plaintiff cannot recover in this case, even though the work of the barber was unskillfully done, and the results were such as neither plaintiff nor the barber anticipated.” The trial court also refused to comply with the defendant’s request to direct the jury to find for the defendant. 1, 2. At the first trial the defendant requested, but the court refused to give, the quoted instruction. On the first appeal we ruled that the instruction should have been given, and that ruling became the law of the case, binding alike upon the parties and the court: Applegate v. Dowell, 17 Or. 299 (20 Pac. 429); Taylor v. Taylor, 54 Or. 560, 567 (103 Pac. 524). Not even the substance of the requested instruction was given, unless it can be found in the following portion of the charge to the jury: “The burden of proof in this case devolved upon the plaintiff. He must prove by a preponderance of evidence that he sustained such an accidental injury as is insured against in the constitution and by-laws of the defendant. In the absence of such proof plaintiff cannot recover. The defendant insured plaintiff only against bodily injuries received through external, violent, and accidental means. In order that plaintiff [575] may recover, he must satisfy you that his injuries were due to an accidental cause, and also that they were due to a violent cause. If the evidence fails to satisfy you on either of those points, your verdict will be for the defendant. If the abrasion of the plaintiff’s chin was due to the intentional act of the barber in endeavoring to remove an ingrowing hair thereon, plaintiff cannot recover, and your verdict will be for the defendant. If, in removing the ingrowing hair from plaintiff’s chin, the barber acted carefully, making no more incisions than he intended to make, and thereafter the wound became infected, causing the disability of which the plaintiff complains, then I instruct you that plaintiff cannot recover, and your verdict should be for the defendant. Plaintiff was insured by the defendant only against disability arising independently of all other causes, from bodily injuries received through external, violent, and accidental means. If, therefore, you find that plaintiff’s disability was caused in part by something other than bodily-injuries received through external violent and accidental means, you should find for the defendant.” We are unable to agree with the plaintiff in his contention that the charge given by the court contains the substance of the requested instruction. The refusal to give the instruction, as requested by the defendant, permitted the jury to find the element of accident in the unskillfulness of the barber, if there was any. Moreover, the requested instruction is in complete harmony with the announcement made by the opinion delivered on the first appeal that “the liability must be be determined by causes rather than consequences.” Because of the refusal of the court to give the requested instruction, we are obliged to reverse the judgment, notwithstanding the fact that there have been two trials. 3. The record made at the second trial is in some particulars different from that of the first trial. The [576] plaintiff did not, at the first trial, testify that there were two “operations,” or “two attempts to get out this ingrowing hair”; nor did he at that trial “say anything to the effect that the wound was at a different place from where the hair was ingrowing.” These differences, however, are immaterial, so far as the law of the case is concerned. Aside from the two particulars mentioned, the testimony of the plaintiff was substantially the same in both trials. It was the theory of the plaintiff at both trials that the barber and the towel man became engaged in an altercation, as a result of which the plaintiff sustained the “wound” from which blood poisoning developed. It was the contention of the defendant at both trials that there was no evidence to show that the blood poisoning was caused by accidental means. This contention of the defendant naturally presents itself in two phases; one arising out of the defendant’s, and the other out of the plaintiff’s theory of the facts. The plaintiff concedes, if we correctly understand his position, that, if the story told by the barber is accepted as a correct account of what occurred, then the disability cannot be said to have been caused by accidental means. According to the barber, he did nothing except what he intended to do, and he was nowise disturbed or interfered with when doing what he intended to do, for he does not admit that he was involved in any altercation with the towel man. The law of the case as made on the first appeal is that the plaintiff cannot recover if the barber’s narrative is believed. It is true that the barber was not produced as a witness at the first trial; but it is also true that, when he was produced as a witness at the secend trial, he testified in substance that in removing the hairs he did nothing more than he intended to do. [577] 4. It was not decided on the first appeal that there was no evidence to sustain a judgment; hut, on the contrary, it was expressly ruled that it was a question “of fact for the jury to determine whether the means producing the injury was accidental or not.” This ruling was made because of the testimony of the plaintiff concerning the altercation with the towel man; and when the court made that ruling it was equivalent to deciding that, if the story told by the plaintiff is accepted as a correct account of what happened, it is sufficient to support a finding that the disability resulted from accidental means. It was not error to refuse to direct the jury to return a verdict for the defendant. In brief, the law of the case as made on the first appeal required the trial court to give the - requested instruction which we have already quoted in full; and it is also the law of the case that evidence to the effect that the “wound” was inflicted by reason and as a result of the alleged altercation, and in the circumstances narrated by the plaintiff, is sufficient to support a judgment for the plaintiff. The judgment must be reversed and the cause remanded for a new trial. Reversed and Remanded. McBride, C. J., and Benson and Burnett, JJ., concur.