
    Raymond E. Masters, appellee, v. Metropolitan Casualty Insurance Company, appellant.
    Filed January 6, 1933.
    No. 28337.
    
      Brome, Thomas & McGuire and G. H. Seig, for appellant.
    
      Courtright, Sidner, Lee & Gunderson, contra.
    
    Heard before Goss, C. J., Dean, Good, Eberly, Day and Paine, JJ.
   Day, J.

This is an action for weekly indemnity under an accident insurance policy which excepts coverage for disability caused directly or indirectly, wholly or partly, by hernia. The insurance company defended on the theory that plaintiff’s disability was due to hernia for which no indemnity was due under the terms of the policy. The defendant appeals from a judgment in favor of plaintiff.

Appellant contends that the evidence does not support the verdict. The plaintiff testified that he had an accident; that thereafter he had an operation for hernia. A physician, who examined him in November following the accident in January and the operation in February, testified from the examination and the history given him as to the nature of hernia in general and the extent of plaintiff’s disability. However, plaintiff by his testimony had fixed the limit of his recovery at fifteen weeks’ total disability, and no amount of opinion evidence would entitle him to a greater recovery.

But that is not the controlling question, which is: Was the plaintiff’s hernia caused by the accident of January 9, 1931, or did the plaintiff have the hernia before that time? There is no evidence that the hernia was caused by the accident of January 9, 1931. There is evidence that after the accident the hernia caused disability. A physician testified for the defendant that he examined the plaintiff in January, 1930, a year before this accident; that plaintiff then had a hernia; that he saw him after this accident, and that he had the same hernia with an increase of the local symptoms over the previous year. This evidence is uncontradicted by competent evidence. In order to forestall future controversy, we note that plaintiff denies that this • physician told him in 1930 that he had a hernia. The only conclusion which the evidence supports is that the plaintiff had the hernia at least a year prior to the accident involved in this case, and that the accident did not cause the hernia.

This was therefore a disability for which the defendant did not contract to indemnify the plaintiff. The judgment of the district court is reversed and the case dismissed.

Reversed and dismissed.  