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loss of a member by removal, the effect, as resulting in the "loss of a hand by removal well as the extent, of the severance, is to be at or above the wrist.” The plaintiff was considered. The specification of removal accidentally shot in the hand, necessitating must be understood to refer to the manner, the removal of all the bones of the hand rather than to the exact physical extent, of at the wrist except the metacarpal bone of the injury.

the thumb. From the medical testimony, Sneck v. Travelers' Ins. Co. supra; Ful- which is meager, and photographs taken ler, Acci. & Employer's Liability Ins. p. 352. about the time of the trial, it appears that

the amputation began at the inner side of McBride, J., delivered the opinion of the left wrist, removing probably a small the court:

portion of the unciform bone, and including This is an action to recover upon an acci- in the operation all the metacarpal bones of dent insurance policy. That portion thereof the four fingers at their articulation with which is material to this case stipulates that the unciform, os magnum, and trapezoid, rethe plaintiff shall be entitled to recover spectively. The os magnum, trapezoid, and $1,000 if he should suffer accidental injuries / trapezium are clearly left intact, and the for full payment in case of the “amputation under the provision of the policy; and it of a limb (whole hand or foot)," as the was held erroneous for the court to hold word "whole” applies to the foot as well as as a matter of law that the insured had to the hand, and the injury insured against not suffered a loss by severance of one entire is not the loss of the use of a hand or foot, hand. but the amputation of a limb that should See also the decision in MOORE V. ÆTNA include a whole hand or whole foot. Fuller L. INS. Co., construing a provision for inv. Locomotive Engineers' Mut. Life & Acei. demnity for injuries resulting in “the loss Ins. Asso. 122 Mich. 548, 48 L.R.A. 86, 80 of a hand by removal at or above the wrist.” Am. St. Rep. 598, 81 N. W. 326. So, in Chevaliers v. Shearer, 27 Ohio C.

Provision for loss of arm. C. 509, under a provision of the constitution

It has been held that the amputation of providing for indemnity if the insured

an arm a little below the elbow is the “loss should "by accident lose one hand by ampu; of an arm” within the meaning of a policy tation at or above the wrist,” it was held which does not mention whether the loss inthat no recovery could be had where the abled, and the full use and service of it mercial Travelers' Eastern Acci. Asso. 184 insured's arm had been permanently dis- sured against is a loss by amputation below

or above the elbow joint. Garcelon v. Compractically destroyed, but neither the arm

Mass. 8, 100 Am. St. Rep. 540, 67 N. E. 868. nor hand had been amputated. In Sneck v. Travellers’ Ins. Co. 81 Hun,

Provisions as to breaking of leg. 331, 30 N. Y. Supp. 881, under a policy providing indemnity for injuries “if loss by It has been held that the construction of severance of one entire hand" should result, a provision for an indemnity if the insured where the plaintiff's hand was cut off three should “accidentally break his leg or arm” fourths of an inch back of the knuckle joint is for the court. Rogers v. Modern Brotherand just back of the second bone of the hood, 131 Mo. App. 353, 111 S. W. 518. thumb, it was held that to bring the case It was further held in that case that the within the provisions the loss must be of definition of the word “leg” as used in the the entire hand; the court remarking that policy should not be influenced by the meanthis meant substantially the entire hand ing placed on it by specialists, since the both in respect to its structure and use, word has a well-defined common meaning, and stated that in that case there was upon and it was accordingly held that evidence the undisputed evidence not such a loss in to define the word should not be admitted, either respect.

but that the court should ascertain its But on a subsequent appeal of this case meaning from the language of the contract. 88 Hun, 94, 34 N. Y. Supp. 545, affirmed in It was also held that the policy which 156 N. Y. 669, 50 N. E. 1122, after the provided for indemnity if the insured should plaintiff had testified substantially that he "break his leg or arm” covered fractures had no use of the injured member as a hand, of bones of the limbs, whether such bones and never had since the accident, although were in the hands or feet or were in the he admitted that upon the former trial he upper or central divisions of the limbs, had probably testified that he could use it and it was accordingly held that a fracture to place under and against objects for the of the heel bone was covered by the policy. purpose of lifting and pushing, it was held In Peterson v. Modern Brotherhood, 125 that the term "entire hand” was to be taken Iowa, 562, 67 L.R.A. 631, 101 N. W. 289, in its general acceptation and ordinary a Pott's fracture, consisting of the breaking meaning, the court saying that it would of one bone of the lower leg between the seem to be an extremely narrow and tech- knee and ankle joint, and a severance of the nical construction to say that only a physi- malleolus process of the other one so as to cal removal of every particle of that por- effect a complete solution of the continuity tion of the human anatomy known as the of both bones, was held not to be covered hand would entitle the insured to recover by a policy providing for indemnity in case bones of the thumb, while possibly injured Defendant's contention is that the loss by the shot, retain their continuity. The of a hand by removal at or above the wrist thumb itself was not removed, although the means that the entire hand must be physiball of that member was partially destroyed cally separated from the body at or above and the ligaments so injured that it is stiff the wrist; and the logical sequence of this and entirely useless. The medical witness argument is that if any fragment, useful or stated that in his opinion it would have useless, is not so removed, the plaintiff has been better to have removed what remained not brought himself within the terms of his of the thumb, so that plaintiff could have policy, and cannot recover. The question is had an artificial hand. There was enough one of extreme nicety, and there is a dearth of the flesh of the hand to cover the bones of decisions covering the exact point here of the wrist forming what the medical wit- l involved; there being no case cited by counness termed "a bunch of hardened callous” | sel or discovered by us involving the conat the end of the wrist, probably no more struction of a policy exactly identical in its than good surgery would require for the terms with the one upon which this action protection of the bones of the wrist. The is predicated. Thus in Sheanon v. Pacific cause was tried without the intervention of Mut. L. Ins. Co. 77 Wis. 618, 9 L.R.A. 685, a jury, and the court found that the plain- 20 Am. St. Rep. 151, 46 N. W. 799, where a tiff had suffered the loss of his hand at the policy was issued against the loss of a hand wrist, and rendered judgment in his favor, or foot, it was held that the insured, who from which defendant appeals.

was shot in the back, the injury completely of the breaking of the shafts of both bones the by-law did not provide that the benefit between the knee and ankle joints, since the should not be received unless the injuries shaft of the bone was held to be distinct were such as to cause the loss of the sight from the malleolus process, so that such of both eyes, and since the object of the a break did not come within the definition association was the mutual protection and of the breaking of a leg contained in the relief of its members, and an amendment of policy.

the by-law passed after the injury, but be

fore the loss of sight of the eye became perProvisions as to loss of eyesight. manent, allowing recovery in case of “total It has been held that the words, “total and permanent loss of one or both eyes,"

was held to make the true meaning of the and permanent loss of the sight of both eyes,” means the loss of eyesight, when used provisions more apparent. in a policy insuring a person who has but

In Phillipy v. Homesteaders, 140 Iowa, one eye, where this fact is known to the 562, 118 N. W. 880, it was held that the insurer, and that a recovery for the speci: to any recovery under a policy providing

loss of one eye did not entitle. the insured fied indemnity may be had where the in- for the payment of an indemnity for the sured loses the sight of his eye. Humphreys loss of the sight of both eyes," since the v. National Ben. Asso. 139 Pa. 264, 11 L.R.A. 564, 20 Atl. 1047.

provision necessarily excluded as a ground And under a policy defining permanent for benefit the loss of one eye.

In this case there was held to be no amtotal disability to be "a complete and irrev. ocable loss of sight in both eyes," and in case of "the loss of the sight of both

biguity in the provision allowing a benefit permanent partial disability to be “a complete and irrevocable loss of sight in one and understanding of the insured that he


,and evidence that it was the intention eye,” where the insured had only one eye was to have a right to recover in case of at 'the time the policy was issued, which the loss of the sight of one eye was held was known to the insurer's agent, and he inadmissible to change the terms of the conafterwards lost the sight of the other eye,

tract. Ibid. this was held to be a “complete and irrev

It has been held that under a policy ocable loss of sight to both eyes.” Bawden v. London, E. & G. Assur. Co. [1892] 2 providing for a specified indemnity if an Q. B. 534, 61 L. J. Q. B. N. S. 792, 57 J. P. accident should result in the loss of the

entire sight of one eye,” a recovery may 116. In Maynard v. Locomotive Engineers'

be had where there is a practical loss of the Mut. Life & Acci. Asso. 16 Utah, 145, 67

entire sight of the eye, it being held not Am. St. Rep. 602, 51 Pac. 259, under a necessary that the whole sight should be by-law of a mutual benefit association pro: International Travelers' Asso. v. Rogers,

destroyed in order to warrant a recovery. viding for a certain indemnity in case of injury causing a “total and permanent loss

Tex. Civ. App. —, 163 S. W. 421,

In this case where there was testimony of eyesight,” which was in force when a member of the association, who was a loco-extent out of his injured eye, he could not

that, although the insured could see to some motive engineer, received an injury which

use it for reading or rely on it to get about immediately affected his eyesight, and about

was held sufficient to a year later resulted in the permanent loss with, the evidence of the sight of one eye, which disabled him show a loss of the entire sight of the eye from pursuing his usual occupation, it was

within the provision of the policy. Ibid.

J. T. W held that a recovery might be had, since

paralyzing the lower limbs so that both his hand was badly injured, but he has the use feet were rendered useless, could recover al. of more than half the hand, so that he has though there was no physical severance of not lost a hand at or above the wrist.” either foot; the court holding that the How different from the case at bar, where phrases covering the loss of a foot should be substantially nothing remains of plaintiff's construed to include the loss of the use of hand but a worse than useless fragment! it. There are a number of decisions to the Another case is Brotherhood of R. Trainsame effect, but in none of these do the men v. Walsh, 89 Ohio St. 18, 103 N. E. words, "by removal,” which are used in the 759, where plaintiff in the court below was policy here considered, appear.

insured against suffering the “amputation We will now consider the cases cited by of the entire hand at or above the wrist.” counsel for defendant, where the words, “by One finger was amputated, leaving the rest removal,” or their equivalent, “by sever- of the hand, as he claimed, useless. It was ance,” are contained in the policy. The first held that he could not recover. In this case, of these is Fuller v. Locomotive Engineers' like the case of Fuller v. Locomotive EngiMut. Life & Acci. Ins. Asso. 122 Mich. 548, neers' Mut. Life & Acci. Ins. Asso. supra, 48 L.R.A. 86, 80 Am. St. Rep. 598, 81 N. W. the court distinguishes the case in hand 326, where the policy was issued against from Sneck v. Travelers' Ins. Co. supra, “injuries which alone shall cause the ampu- much relied upon by respondent here, saytation of a limb (whole hand or foot)." | ing: "The circuit court, in its opinion, reThe plaintiff in that case suffered an in- fers to the case of Sneck v. Travelers’ Ins. jury which resulted in an amputation of Co. supra, and holds that the law announced about one third of the foot, leaving all of there is applicable. In that case, the policy the heel, substantially all of the hollow of insurance provided against loss, by severof the foot, and possibly, part of the ball ance, of one entire hand. The insured lost of the foot; the policy having been condi- only a portion of his hand; but it appeared tioned upon the amputation of "the whole that the part remaining was useless, and it of the foot.” The court held that he could was held that plaintiff had lost his entire not recover even though he claimed in his hand,' within the meaning of the policy protestimony that the remaining portion of the viding for such loss. In the regulation unfoot was useless. The opinion contains an der consideration here, the word 'loss' is interesting résumé of the cases bearing eliminated, and the association limited its upon this subject, and distinguishes between liability to cases where an entire hand is the case then in hand and Sneck v. Travel actually amputated or severed. If, under ers' Ins. Co. 88 Hun, 94, 34 N. Y. Supp. the regulation in question, defendant in 545, hereafter to be noticed. Another of error is entitled to recover for the loss of the cases is Chevaliers v. Shearer, 27 Ohio the use of his entire hand, which has been C. C. 509, in which the plaintiff was in severed in part only, then the words, ‘at or sured against loss of the hand by ampu- | above the wrist joint,' would serve no pur-, tation. He received an injury whereby he pose.” lost the complete use of his hand; but no The foregoing are the leading cases cited part of it was amputated, and it was held to support defendant's contention.

They that the injury was not within the terms may be divided into three classes: (a) of the policy. In Mady v. Switchmen’s Where no part of the hand or foot has been Union, 116 Minn, 147, 133 N. W. 472, the severed, but where it has become useless by plaintiff was insured against injury OC- reason of an injury to some other part of casioned by physical separation of four the body, as in the case of the man who fingers at or above the third joint. The

was paralyzed by being shot in the back; proof showed that he had lost three fingers (b) where some portion of the injured memby amputation at the third joint, and that ber has been severed, but some useful porthe fourth finger was injured so as to im- tion still remains, as in the case of Mady v. pair its usefulness 50 per cent. It was held Switchmen's Union, supra, or the case of that this injury was not within the terms of the policy. In Stoner v. Yeoman of Amer-Stoner v. Yeomen of America, supra, where ica, 160 ill. App. 432, plaintiff was insured there was a partial amputation, but enough against injury by loss of a hand at or above of the injured member left to enable the the wrist. The evidence showed that he had injured person to use it imperfectly in his at least half of the hand left. The court ordinary business; or (c) where there was held he could not recover, saying: “He an injury requiring the amputation of a (plaintiff] testified he could use the hand comparatively small part of the injured to drive nails, but that he did not have member, the larger portion remaining but much strength in it; that he had worked practically useless. In our opinion the case at the carpenter's trade earning $2 a day at bar does not come within any of these since the injury. It is clear that plaintiff's 'classifications, either in letter or spirit,

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and the plaintiff must be held to be within and the consequent removal at the wrist of the true meaning and spirit of the policy. all that made the member useful. An in

It is a thoroughly settled rule in the con- surer should not be allowed, by the use of struction of a policy of insurance which is obscure phrases and exceptions, to defeat the reasonably susceptible of two interpreta- very purpose for which the policy was protions, that that meaning will be given to it cured. This rule finds support in Sneck v. which is more favorable to the insured. Travelers’ Ins. Co. supra, which is in many Hoffman v. Ætna Ins. Co. 32 N. Y. 413, 88 respects similar to the case at bar. The Am. Dec. 337; Darrow v. Family Fund Soc. plaintiff was insured against “loss by sever116 N. Y. 537, 6 L.R.A. 495, 15 Am. St. Rep. ance of one entire hand.” It appeared from 430, 22 N. E. 1093; American Surety Co. v. the testimony that 13 of the 27 bones of the Pauly, 170 U. S. 133, 42 L. ed. 977, 18 Sup. hand were gone; that nearly one half of Ct. Rep. 552; Sneck v. Travelers' Ins. Co. the hand anatomically speaking remained, supra. This is but giving effect to the but was useless. The court held that he was maxim of Lord Bacon quoted in the case entitled to recover, and used this language: of Hoffman v. Ætna Ins. Co. supra, namely: "To require the insured to submit to a “All words,

whether they be in strictly literal interpretation of the contract deeds or statutes or otherwise, if they be prepared for him by the insurer, without regeneral, and not express and precise, shall gard to the purpose of the contract or the be restrained unto the fitness of the matter understanding thereof by the parties, would and the person.”

be to hold that only in case of the severance And it is also observed in the same opin- of the entire hand in a most accurately ion: “It is a rule of law, as well as of anatomical or technical sense could the inethics, that where the language of a prom- sured recover under the clause of the policy. isor may be understood in more senses than We do not believe that such a conclusion is one, it is to be interpreted in the sense in required in the present case. The term 'en. which he had reason to suppose it was un- tire hand' is to be taken in its general derstood by the promisee.

It is acceptation and ordinary meaning. In conalso a familiar rule of law that, if it be struing this contract the law does not releft in doubt, in view of the general tenor quire an injury which comes within a strictof the instrument and the relations of the ly accurate and technical definition of the contracting parties, whether given words words employed, but one which reasonably, were used in an enlarged or a restricted fairly, and practically comes within the sense, other things being equal, that con- meaning of the terms employed in their genstruction should be adopted which is most eral and usual meaning and acceptation. In beneficial to the promisee.”

a contract of insurance providing for inNow, in view of these salutary maxims of demnity for the loss of a limb, the compensathe jurists, let us consider the relations of tion to be paid is not merely for the physithe parties and the object which plaintiff | cal pain of its amputation, but principally had in view when he took out this policy. for the deprivation of its use as a member He had a good hand against losing the use of the body. It would seem to be an exof which he desired to insure. If he had tremely narrow and technical construction been told the intent and meaning of the of this contract to say that only a physical policy was such that if in case of a neces- removal of every particle of that portion of sary amputation the surgeon should leave the human anatomy known as the hand some useless shred of his hand to be a source would entitle the insured to recover under of annoyance and inconvenience, and there the clause of the policy now under consideraby his policy would be practically worthless, tion. Is it not more reasonable and logical does any sane person believe for a moment to conclude that, in the use of the language he would have taken out the policy? The above referred to, the entire hand' as substance of what he sought was insurance part of the human structure is considered against the possible loss of his hand as a in connection with the use to which it is useful member of his body. Substantially adapted, and the injury which the loss of he has lost his hand by removal at the wrist. such use would entail? Is it not also fair In view of all the decisions, it is apparent to assume that this was regarded by the that the words, "by removal at or above parties as the sense in which the contract the wrist,” were introduced as a safeguard was to be understood, and was one of the against possible fraud, and to prevent a re- considerations which influenced the insured covery in cases where there had been no sub- to enter into the contract?" stantial removal of the injured member; This case was afterwards affirmed by the but here the hand, as a hand, is gone. Prac- court of appeals in a memorandum opinion, tically the plaintiff has no hand. What oc- which does not further discuss the legal casioned this practical loss of his hand ? points involved. A further case having The answer must be the gunshot wound,' some features in common with the case at


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bar is Garcelon V. Commerical Travelers', suffered the loss of his hand by removal at
Eastern Acei. As8o. 184 Mass. 8, 100 Am. the wrist, and therefore affirm the judgment.
St. Rep. 540, 67 N. E. 868. Plaintiff was
insured against the loss of an arm, and Moore, Ch. J., and Benson and Bur.
suffered an accident necessitating the ampu. nett, JJ., concur.
tation of his arm below the elbow. There,
as here, the defendant contended that the
loss of a portion of an arm was not the "loss
of an arm” within the meaning of the pol. SOUTH DAKOTA SUPREME COURT.
iey; but the court overruled its contention.
In Fuller v. Locomotive Engineers' Mut.

Life & Acci. Ins. Asso. 122 Mich. 553, 48
L.R.A. 86, 80 Am. St. Rep. 598, 81 N. W.

JOHN HAYES et al., Appts.
326, the court, after citing authorities, re-
marks: "These cases establish the proposi.

(- S. D. -, 151 N. W. 42.) tion that where an insurance policy insures

Mortgage consideration payment against the loss of a member, or the loss of

to wrong agent. an entire member, the word 'loss' should be 1. Under an application to a banker for construed to mean the destruction of the a loan to be paid to a specified agent, usefulness of the member, or the entire mem- another banker, to whom the application is ber, for the purposes to which, in its normal forwarded, does not complete the loan so condition, it was susceptible of application. as to be entitled to the note and mortgage In all of these policies the word 'loss' is

given to secure repayment by paying the used, and it is the loss of the member that stion was originally directed.

money to the banker to whom the applicais in terms insured against. As indicated

Bills and

passing through in the last authority cited, the attempts of hands of bona fide purchaser rights the insurance companies to avoid this con- of original payee. struction by so changing the policy that it 2. The payee of a note unenforceable bereads, “loss by severance of feet or hands,'cause of lack of consideration cannot, by have failed; the courts holding, as before, repurchasing the paper after transferring that it is the loss of the use of the member it to a bona fide purchaser for value, with, which was the object of the contract."

out notice, acquire the rights of such pur.

chaser, so as to hold the paper free from 1 Am. & Eng. Enc. Law, 2d ed. p. 301,

equities. sums up the authorities as follows: "It has been contended on behalf of the insurance

(February 13, 1915.) companies that the provisions in regard to the 'loss' of the hands and feet must be un. PPEAL by defendants from a judgment

A derstood to imply an actual amputation or of the Circuit Court for Pennington physical severance of those members from County in plaintiff's favor in an action the body. But this view has not met with brought to cancel two mortgages. Affirmed. favor from the courts; it being held that, to The facts are stated in the opinion. entitle the insured to recover, physical sev. Messrs. Johnson, Brown, & Johnson erance is unnecessary, but it is sufficient if and A. M. Bayer, for appellants: he has been deprived entirely of the use of The consideration in any event is not the feet and hands as members of the body. necessary to a transfer of property where a And there can scarcely be any doubt as to consideration is presumed. A mortgage is the soundness of this view, for if the feet a transfer of property. and hands cannot be used for the purpose Croft v. Bunster, 9 Wis. 503; 27 Cyc. of moving about or walking, or for holding 1050. and handling things, they are in fact lost There is no evidence to show that defendas much as though actually severed from

Note. the body. Many of the companies have

The rights of the payee of a note altered their policies so as to read, 'the loss after purchasing it from a bona fide holder

are considered in the note to Andrews v. of feet or hands by severance' thereof; but Robertson, 54 L.R.A. 673, and that note is this provision has been held to be intended supplemented at page 78 of the note to to refer to the manner rather than to the Dispatch Printing Co. v. National Bank, 50 exact physical extent of the injury.” L.R.A. (N.S.) 74, on the general subject of

We do not cite these excerpts as being the right of a purchaser with notice from precisely in point in the present case, but a bona fide holder to the same protection

Also to right of purchaser, rather to indicate the tendency of the courts as the latter. to adhere to the spirit rather than the strict the same protection as the latter, see notes

after maturity, from bona fide holder, to letter of these contracts; and, construing to Y. M. C. A. Gymnasium Co. v. Rockford this policy in accordance with its spirit and Nat. Bank, 46 L.R.A. 784, and Miles v. substance, we hold that the plaintiff has 'Dodson, 50 L.R.A. (N.S.) 83.

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