#### HECTOR HARRIS v. PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY.

(Filed 6 April, 1927.)

Insurance, Accident — Policy—Contracts—Sole Cause of Injury — Evidence —Questions for Jury — Nonsuit.

Where a policy of accident insurance provides that the insurer will not be liable unless the injury resulted directly and exclusively of all other causes from bodily injuries sustained, etc., evidence that the insured had sustained an injury from* a gun-shot wound of some twenty years before that had healed, and there was no causal connection between it and the injury complained of, and evidence per contra, raises an issue' for the jury, and the defendant’s motion as of nonsuit should be denied.

Oivil action, before Midyette, J., at November Term, 1926, of Hoke.

The evidence tended to show that the defendant issued an accident insurance policy to the plaintiff in December, 1923; that on or about October, 1924, while said policy was in force, the plaintiff accidentally slipped into a hole and as a result suffered serious injury, and has not been able to work since the accident.

The plaintiff testified that about twenty years prior to taking out the policy he had suffered a gun-shot wound in his hip, and that at the time defendant’s agent solicited him for insurance he notified the agent of his injury, and of the further fact that he was a “sort of a cripple by reason of the fact that one leg was shorter than the other. ... I told him about my wound and that it had been cured up twenty years ago. I told him it was a gun-shot wound. He took my money and gave me a note for it, and in about three or four days the policy came back.” At the time of the trial the plaintiff was suffering from a chronic pus and infection of the bone in his right leg.

The defendant contended that plaintiff’s injury was not due to the accident in falling in a stump hole, but was due to the gun-shot wound. In this connection, plaintiff testified: “After the gun-shot wound cured

up, I did not suffer any from it. . . . That wound began to run about a month after I fell in the hole. This leg had not hurt me in twenty years before. It gave me pain several times when I would work, and in about four weeks after the accident it began to run. ... If any skin was broken, it was on the inside. I would mnot say whether it ‘broke any bones or not, some shattered or thin pieces of bone came out.”

Dr. Murray, witness for the defendant, testified that plaintiff “claimed he fell and injured his leg and it started up some old trouble that he had before from a gun-shot wound. ... I could not tell how long this wound had been running. I do not have an opinion as to how long it had been running, or whether it was an old or new wound. . . . Falling *486into this hole, as be claimed to you be did, could bave caused tbis trouble. He told me tbat tbis old gun-sbot wound bad not given bim any trouble prior to tbe injury in several years. Taking into consideration bis statement to me, tbe primary cause o£ tbe running condition was tbe gun-sbot wound. It started up tbe old trouble.”

At tbe conclusion of tbe evidence, tbe motion for nonsuit made by tbe defendant was sustained, and tbe plaintiff appealed.

H. W. B. Whitley for plaintiff.

Smith & McQueen for defendant.

Brogden, J.

The accident policy upon wbicb tbe plaintiff brings tbis suit insures tbe plaintiff against “tbe effects resulting directly and exclusively of all other causes from bodily injury sustained during tbe life of tbis policy, solely through external, violent, and accidental means,” etc.

Yiewing plaintiff’s evidence in its most favorable light, as we are required to do in cases of nonsuit, tbe question to be determined is whether or not plaintiff’s injury.“resulted directly and exclusively of all other causes . . . solely through external, violent and accidental means.” Tbe rule of law governing tbe cause of action is thus summarized by Justice Walker in Penn v. Ins. Co., 160 N. C., 404:

> “1. When an accident caused a diseased condition, wbicb together with tbe accident resulted in tbe injury or death complained of, tbe accident alone is to be considered tbe cause of tbe injury or death.

> “2. When at tbe time of tbe accident tbe insured was suffering from some disease, but tbe disease bad no causal connection with tbe injury or death resulting from tbe accident, tbe accident is to be considered as tbe sole cause.

> “3. When at the time of the accident there was an existing disease, wbicb, cooperating with tbe accident, resulted in tbe injury or death, tbe accident cannot be considered as tbe sole cause, or as tbe cause independent of all other causes.” Penn v. Ins. Co., 158 N. C., 29; Fishblate v. Fidelity Co., 140 N. C., 593.

Tbe plaintiff asserts tbat there was no causal connection between tbe gun-sbot wound and tbe accidental injury. Upon tbe contrary, tbe defendant asseíts tbat tbe plaintiff’s injury was tbe result of tbe preexisting injury occasioned by tbe gun-sbot wound. Tbe evidence of tbe plaintiff tended to show tbat tbe gun-sbot wound was thoroughly cured at tbe time of tbe accident. Tbe evidence of tbe defendant was to tbe contrary. Conflicting testimony does not warrant a withdrawal of tbe case from tbe jury. It is for tbe jury to determine what weight shall *487be given to the evidence. Shell v. Roseman, 155 N. C., 90; Christman v. Hilliard, 167 N. C., 5; Lee v. Brotherhood, 191 N. C., 359; Smith v. Coach Line, 191 N. C., 589.

We conclude, upon the whole record, that there was sufficient evidence to be submitted to the jury upon the issues arising upon the pleadings.

Reversed.