Price, Sullivan and Lewis. The opinion of the court was delivered by Price, S.j.a.d.
Defendant seeks to reverse a judgment entered in the Superior Court, Law Division, in favor of plaintiff in the sum of $4,800. The case was tried without a jury.
The judgment represented the amount claimed by plaintiff to be due to him under the terms of an "accident income policy" issued by defendant to plaintiff. The policy provided coverage for disabilities, arising out of bodily injuries sustained by the insured, "as the direct result of an accident,
independent of all other causes." The policy, under the section captioned "Exceptions," contained the provision that:
"1. This policy does not cover, and no payment shall be made for, disability or other loss caused or contributed to by any of the following:
(f) Disease, or bodily or mental infirmity, or medical or surgical treatment or diagnostic procedure for such disease or infirmity."
On February 11, 1959, while the aforesaid policy was operative, plaintiff, a steel fabricator, suffered a myocardial infarction while at work, as the result of which he was hospitalized for many weeks and allegedly permanently prevented from resuming his regular occupation. He contended that the circumstances, hereinafter recited, surrounding the onset of the attack, were such as to entitle him to disability payments under the aforesaid policy of insurance, and that defendant, by its refusal to make such payments on his demand, had breached its contract of insurance. Defendant contended, as expressed in the pretrial order, that "plaintiff did not sustain any injury" resulting from an accident "within the meaning" of the aforesaid policy. The issue thus projected was the sole issue for resolution at trial.
Following the presentation of proofs, the trial court initially determined that "the injury suffered by plaintiff did not come into being as a result of an accident." An accordant judgment, dismissing plaintiff's complaint "on the merits and with prejudice," was entered. Thereafter the court granted plaintiff's motion to vacate the judgment and, in reversal of its former opinion, directed the entry of judgment in favor of plaintiff for the aforesaid sum of $4,800. From that judgment defendant appeals. It does not challenge the amount thereof, as such, contending only that plaintiff had no right to any judgment in his favor as he did not "sustain the burden of proof that his disability came within the coverage of the policy." Asserting that the "facts are undisputed,"
defendant asks that the judgment under review be reversed and that we direct the entry of judgment in its favor.
We consider the factual situation revealed by the record.
Plaintiff, approximately 48 years of age, had worked for 25 years for Welded Products Company of Newark as a steel fabricator. He described his duties as "forming, setting up, erecting, delivery of tanks, unloading * * * and loading steel." On February 11 his specific task involved the transportation of two cylindrical steel tanks, one approximately four feet in diameter, eight feet in length and weighing 600 pounds, the other five feet in diameter, ten feet in length and weighing approximately 800 pounds. They "were loaded lengthwise" onto a "flat-bed truck" by an electric hoist. At the place of delivery the tanks were to be moved from the truck to a platform which was about six inches higher than the bed of the truck. At that place the unloading of the tanks was to be accomplished with the aid of a "small electric fork truck" which would raise one end of each tank to the level of the platform. Plaintiff would then, unaided, push the tanks off the truck.
Plaintiff testified that as he was pushing the 600-pound tank off the truck onto the platform he "became short-winded or out of breath" and "felt like [he] was on fire inside * * *; like something was pushing [his] chest out." He further testified that, after resting for approximately five minutes, he was able to "breathe a little easier" and finished moving the first tank from the truck to the platform. After he had moved the larger tank about six feet to the place on the truck where the "forklift could come in contact with it," he experienced a "swelling sensation" in his chest, his "arms felt weak" and his "legs felt rubbery." Following five minutes of rest he completed the removal of the second tank from the truck to the platform. He then drove the truck away from the plant where the delivery had ...