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 the removal of all the bones of the hand at the wrist except the metacarpal bone of the thumb. From the medical testimony, which is meager, and photographs taken about the time of the trial, it appears that the amputation began at the inner side of must be understood to refer to the manner, rather than to the exact physical extent, of the injury. Sneck v. Travelers' Ins. Co. supra; Fuller, Acci. & Employer's Liability Ins. p. 352. McBride, J., delivered the opinion of the left wrist, removing probably a small the court: This is an action to recover upon an accident insurance policy. That portion thereof which is material to this case stipulates that the plaintiff shall be entitled to recover $1,000 if he should suffer accidental injuries for full payment in case of the "amputation of a limb (whole hand or foot),' as the word "whole" applies to the foot as well as to the hand, and the injury insured against is not the loss of the use of a hand or foot, but the amputation of a limb that should include a whole hand or whole foot. Fuller v. Locomotive Engineers' Mut. Life & Acei. Ins. Asso. 122 Mich. 548, 48 L.R.A. 86, 80 Am. St. Rep. 598, 81 N. W. 326. So, in Chevaliers v. Shearer, 27 Ohio C. C. 509, under a provision of the constitution providing for indemnity if the insured should "by accident lose one hand by ampu: tation at or above the wrist," it was held that no recovery could be had where the insured's arm had been permanently disabled, and the full use and service of practically destroyed, but neither the arm nor hand had been amputated. portion of the unciform bone, and including in the operation all the metacarpal bones of the four fingers at their articulation with the unciform, os magnum, and trapezoid, respectively. The os magnum, trapezoid, and trapezium are clearly left intact, and the under the provision of the policy; and it was held erroneous for the court to hold as a matter of law that the insured had not suffered a loss by severance of one entire hand. See also the decision in MOORE V. ETNA L. INS. Co., construing a provision for indemnity for injuries resulting in "the loss of a hand by removal at or above the wrist." Provision for loss of arm. It has been held that the amputation of an arm a little below the elbow is the "loss of an arm" within the meaning of a policy which does not mention whether the loss insured against is a loss by amputation below itmercial Travelers' Eastern Acci. Asso. 184 or above the elbow joint. Garcelon v. ComMass. 8, 100 Am. St. Rep. 540, 67 N. E. 868. In Sneck v. Travellers' Ins. Co. 81 Hun, 331, 30 N. Y. Supp. 881, under a policy providing indemnity for injuries "if loss by severance of one entire hand" should result, where the plaintiff's hand was cut off three fourths of an inch back of the knuckle joint and just back of the second bone of the thumb, it was held that to bring the case within the provisions the loss must be of the entire hand; the court remarking that this meant substantially the entire hand both in respect to its structure and use, and stated that in that case there was upon the undisputed evidence not such a loss in either respect. But on a subsequent appeal of this case 88 Hun, 94, 34 N. Y. Supp. 545, affirmed in 156 N. Y. 669, 50 N. E. 1122, after the plaintiff had testified substantially that he had no use of the injured member as a hand, and never had since the accident, although he admitted that upon the former trial he had probably testified that he could use it to place under and against objects for the purpose of lifting and pushing, it was held that the term "entire hand" was to be taken in its general acceptation and ordinary meaning, the court saying that it would seem to be an extremely narrow and technical construction to say that only a physical removal of every particle of that portion of the human anatomy known as the hand would entitle the insured to recover Provisions as to breaking of leg. It has been held that the construction of a provision for an indemnity if the insured should "accidentally break his leg or arm" is for the court. Rogers v. Modern Brotherhood, 131 Mo. App. 353, 111 S. W. 518. It was further held in that case that the definition of the word "leg" as used in the policy should not be influenced by the meaning placed on it by specialists, since the word has a well-defined common meaning, and it was accordingly held that evidence to define the word should not be admitted, but that the court should ascertain its meaning from the language of the contract. It was also held that the policy which provided for indemnity if the insured should "break his leg or arm" covered fractures of bones of the limbs, whether such bones were in the hands or feet or were in the upper or central divisions of the limbs, and it was accordingly held that a fracture of the heel bone was covered by the policy. In Peterson v. Modern Brotherhood, 125 Iowa, 562, 67 L.R.A. 631, 101 N. W. 289, a Pott's fracture, consisting of the breaking of one bone of the lower leg between the knee and ankle joint, and a severance of the malleolus process of the other one so as to effect a complete solution of the continuity of both bones, was held not to be covered by a policy providing for indemnity in case Defendant's contention is that the loss of a hand by removal at or above the wrist means that the entire hand must be physically separated from the body at or above the wrist; and the logical sequence of this argument is that if any fragment, useful or useless, is not so removed, the plaintiff has not brought himself within the terms of his policy, and cannot recover. The question is one of extreme nicety, and there is a dearth of decisions covering the exact point here bones of the thumb, while possibly injured by the shot, retain their continuity. The thumb itself was not removed, although the ball of that member was partially destroyed and the ligaments so injured that it is stiff and entirely useless. The medical witness stated that in his opinion it would have been better to have removed what remained of the thumb, so that plaintiff could have had an artificial hand. There was enough of the flesh of the hand to cover the bones of the wrist forming what the medical wit-involved; there being no case cited by counness termed "a bunch of hardened callous" at the end of the wrist, probably no more than good surgery would require for the protection of the bones of the wrist. The cause was tried without the intervention of a jury, and the court found that the plaintiff had suffered the loss of his hand at the wrist, and rendered judgment in his favor, from which defendant appeals. of the breaking of the shafts of both bones between the knee and ankle joints, since the shaft of the bone was held to be distinct from the malleolus process, so that such a break did not come within the definition of the breaking of a leg contained in the policy. sel or discovered by us involving the construction of a policy exactly identical in its terms with the one upon which this action is predicated. Thus in Sheanon v. Pacific Mut. L. Ins. Co. 77 Wis. 618, 9 L.R.A. 685, 20 Am. St. Rep. 151, 46 N. W. 799, where a policy was issued against the loss of a hand or foot, it was held that the insured, who was shot in the back, the injury completely the by-law did not provide that the benefit should not be received unless the injuries were such as to cause the loss of the sight of both eyes, and since the object of the association was the mutual protection and relief of its members, and an amendment of the by-law passed after the injury, but before the loss of sight of the eye became permanent, allowing recovery in case of "total and permanent loss of one or both eyes," was held to make the true meaning of the provisions more apparent. Provisions as to loss of eyesight. It has been held that the words, "total and permanent loss of the sight of both eyes," means the loss of eyesight, when used In Phillipy v. Homesteaders, 140 Iowa, in a policy insuring a person who has but 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- loss of one eye did not entitle the insured fied indemnity may be had where the in- to any recovery under a policy providing sured loses the sight of his eye. Humphreys v. National Ben. Asso. 139 Pa. 264, 11 L.R.A. 564, 20 Atl. 1047. And under a policy defining permanent total disability to be "a complete and irrevocable loss of sight in both eyes," and permanent partial disability to be "a complete and irrevocable loss of sight in one eye," where the insured had only one eye at the time the policy was issued, which was known to the insurer's agent, and he afterwards lost the sight of the other eye, this was held to be a "complete and irrevocable loss of sight to both eyes." Bawden v. London, E. & G. Assur. Co. [1892] 2 Q. B. 534, 61 L. J. Q. B. N. S. 792, 57 J. P. 116. loss of the sight of both eyes," since the for the payment of an indemnity for "the provision necessarily excluded as a ground for benefit the loss of one eye. In this case there was held to be no amin case of "the loss of the sight of both biguity in the provision allowing a benefit eyes," and evidence that it was the intention and understanding of the insured that he was to have a right to recover in case of the loss of the sight of one eye was held tract. Ibid. inadmissible to change the terms of the con It has been held that under a policy providing for a specified indemnity if an accident should result in the loss "of the entire sight of one eye," a recovery may be had where there is a practical loss of the entire sight of the eye, it being held not necessary that the whole sight should be International Travelers' Asso. destroyed in order to warrant a recovery. v. Rogers, In Maynard v. Locomotive Engineers' Mut. Life & Acci. Asso. 16 Utah, 145, 67 Am. St. Rep. 602, 51 Pac. 259, under a by-law of a mutual benefit association providing for a certain indemnity in case of Tex. Civ. App. -, 163 S. W. 421. injury causing a "total and permanent loss 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 immediately affected his eyesight, and about a year later resulted in the permanent loss of the sight of one eye, which disabled him from pursuing his usual occupation, it was held that a recovery might be had, since use it for reading or rely on it to get about with, the evidence was held sufficient to show a loss of the entire sight of the eye within the provision of the policy. Ibid. J. T. W paralyzing the lower limbs so that both his feet were rendered useless, could recover although there was no physical severance of either foot; the court holding that the phrases covering the loss of a foot should be construed to include the loss of the use of it. There are a number of decisions to the same effect, but in none of these do the words, "by removal," which are used in the policy here considered, appear. hand was badly injured, but he has the use of more than half the hand, so that he has not lost a hand at or above the wrist." How different from the case at bar, where substantially nothing remains of plaintiff's hand but a worse than useless fragment! Another case is Brotherhood of R. Trainmen v. Walsh, 89 Ohio St. 18, 103 N. E. 759, where plaintiff in the court below was insured against suffering the "amputation of the entire hand at or above the wrist." One finger was amputated, leaving the rest of the hand, as he claimed, useless. It was held that he could not recover. In this case, like the case of Fuller v. Locomotive Engineers' Mut. Life & Acci. Ins. Asso. supra, the court distinguishes the case in hand from Sneck v. Travelers' Ins. Co. supra, much relied upon by respondent here, saying: "The circuit court, in its opinion, refers to the case of Sneck v. Travelers' Ins. Co. supra, and holds that the law announced there is applicable. In that case, the policy of insurance provided against loss, by severance, of one entire hand. The insured lost only a portion of his hand; but it appeared that the part remaining was useless, and it was held that plaintiff had lost his entire hand,' within the meaning of the policy providing for such loss. In the regulation under consideration here, the word 'loss' is eliminated, and the association limited its liability to cases where an entire hand is actually amputated or severed. If, under the regulation in question, defendant in error is entitled to recover for the loss of the use of his entire hand, which has been severed in part only, then the words, 'at or above the wrist joint,' would serve no purpose." We will now consider the cases cited by counsel for defendant, where the words, "by removal," or their equivalent, "by severance," are contained in the policy. The first of these is Fuller v. Locomotive Engineers' Mut. Life & Acci. Ins. Asso. 122 Mich. 548, 48 L.R.A. 86, 80 Am. St. Rep. 598, 81 N. W. 326, where the policy was issued against "injuries which alone shall cause the amputation of a limb (whole hand or foot)." The plaintiff in that case suffered an injury which resulted in an amputation of about one third of the foot, leaving all of the heel, substantially all of the hollow of the foot, and possibly part of the ball of the foot; the policy having been conditioned upon the amputation of "the whole of the foot." The court held that he could not recover even though he claimed in his testimony that the remaining portion of the foot was useless. The opinion contains an interesting résumé of the cases bearing upon this subject, and distinguishes between the case then in hand and Sneck v. Travelers' Ins. Co. 88 Hun, 94, 34 N. Y. Supp. 545, hereafter to be noticed. Another of the cases is Chevaliers v. Shearer, 27 Ohio C. C. 509, in which the plaintiff was insured against loss of the hand by amputation. He received an injury whereby he lost the complete use of his hand; but no part of it was amputated, and it was held that the injury was not within the terms of the policy. In Mady v. Switchmen's Union, 116 Minn. 147, 133 N. W. 472, the plaintiff was insured against injury occasioned by physical separation of four fingers at or above the third joint. The proof showed that he had lost three fingers by amputation at the third joint, and that the fourth finger was injured so as to impair its usefulness 50 per cent. It was held 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, The foregoing are the leading cases cited to support defendant's contention. They may be divided into three classes: (a) Where no part of the hand or foot has been severed, but where it has become useless by reason of an injury to some other part of the body, as in the case of the man who was paralyzed by being shot in the back; (b) where some portion of the injured member has been severed, but some useful portion still remains, as in the case of Mady v. Switchmen's Union, supra, or the case of and the plaintiff must be held to be within and the consequent removal at the wrist of all that made the member useful. An insurer should not be allowed, by the use of obscure phrases and exceptions, to defeat the very purpose for which the policy was procured. This rule finds support in Sneck v. Travelers' Ins. Co. supra, which is in many respects similar to the case at bar. The plaintiff was insured against "loss by severance of one entire hand." It appeared from the testimony that 13 of the 27 bones of the hand were gone; that nearly one half of the hand anatomically speaking remained, but was useless. The court held that he was entitled to recover, and used this language: "To require the insured to submit to a strictly literal interpretation of the contract prepared for him by the insurer, without regard to the purpose of the contract or the understanding thereof by the parties, would be to hold that only in case of the severance of the entire hand in a most accurately anatomical or technical sense could the in And it is also observed in the same opinion: "It is a rule of law, as well as of ethics, that where the language of a prom-sured recover under the clause of the policy. isor may be understood in more senses than one, it is to be interpreted in the sense in which he had reason to suppose it was understood by the promisee. It is also a familiar rule of law that, if it be left in doubt, in view of the general tenor of the instrument and the relations of the contracting parties, whether given words were used in an enlarged or a restricted sense, other things being equal, that construction should be adopted which is most beneficial to the promisee." We do not believe that such a conclusion is required in the present case. The term 'entire hand' is to be taken in its general acceptation and ordinary meaning. In construing this contract the law does not require an injury which comes within a strictly accurate and technical definition of the words employed, but one which reasonably, fairly, and practically comes within the meaning of the terms employed in their general and usual meaning and acceptation. In a contract of insurance providing for indemnity for the loss of a limb, the compensation to be paid is not merely for the physical pain of its amputation, but principally for the deprivation of its use as a member of the body. It would seem to be an extremely narrow and technical construction of this contract to say that only a physical removal of every particle of that portion of the human anatomy known as the hand would entitle the insured to recover under the clause of the policy now under consideration. Is it not more reasonable and logical to conclude that, in the use of the language above referred to, the 'entire hand' as a part of the human structure is considered in connection with the use to which it is adapted, and the injury which the loss of such use would entail? Is it not also fair to assume that this was regarded by the parties as the sense in which the contract was to be understood, and was one of the considerations which influenced the insured to enter into the contract?" Now, in view of these salutary maxims of the jurists, let us consider the relations of the parties and the object which plaintiff had in view when he took out this policy. He had a good hand against losing the use of which he desired to insure. If he had been told the intent and meaning of the policy was such that if in case of a necessary amputation the surgeon should leave some useless shred of his hand to be a source of annoyance and inconvenience, and thereby his policy would be practically worthless, does any sane person believe for a moment he would have taken out the policy? The substance of what he sought was insurance against the possible loss of his hand as a useful member of his body. Substantially he has lost his hand by removal at the wrist. In view of all the decisions, it is apparent that the words, "by removal at or above the wrist," were introduced as a safeguard against possible fraud, and to prevent a recovery in cases where there had been no substantial 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 Moore, Ch. J., and Benson and Burnett, JJ., concur. SOUTH DAKOTA SUPREME COURT. V. JOHN HAYES et al., Appts. (S. D. Mortgage 151 N. W. 42.) payment consideration bar is Garcelon v. Commerical Travelers' | suffered the loss of his hand by removal at Eastern Acei. Asso. 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 suffered an accident necessitating the amputation 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 policy; 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. 326, the court, after citing authorities, remarks: "These cases establish the proposition that where an insurance policy insures against the loss of a member, or the loss of an entire member, the word 'loss' should be construed to mean the destruction of the usefulness of the member, or the entire member, for the purposes to which, in its normal condition, it was susceptible of application. In all of these policies the word 'loss' is used, and it is the loss of the member that is in terms insured against. As indicated in the last authority cited, the attempts of the insurance companies to avoid this construction by so changing the policy that it reads, 'loss by severance of feet or hands,' have failed; the courts holding, as before, that it is the loss of the use of the member which was the object of the contract." 1 Am. & Eng. Enc. Law, 2d ed. p. 301, sums up the authorities as follows: "It has been contended on behalf of the insurance companies that the provisions in regard to the 'loss' of the hands and feet must be understood to imply an actual amputation or physical severance of those members from the body. But this view has not met with favor from the courts; it being held that, to entitle the insured to recover, physical severance is unnecessary, but it is sufficient if he has been deprived entirely of the use of the feet and hands as members of the body. And there can scarcely be any doubt as to the soundness of this view, for if the feet and hands cannot be used for the purpose of moving about or walking, or for holding and handling things, they are in fact lost as much as though actually severed from the body. Many of the companies have altered their policies so as to read, 'the loss of feet or hands by severance' thereof; but this provision has been held to be intended to refer to the manner rather than to the exact physical extent of the injury." We do not cite these excerpts as being precisely in point in the present case, but rather to indicate the tendency of the courts to adhere to the spirit rather than the strict letter of these contracts; and, construing this policy in accordance with its spirit and substance, we hold that the plaintiff has to wrong agent. 1. Under an application to a banker for a loan to be paid to a specified agent, another banker, to whom the application is forwarded, does not complete the loan so as to be entitled to the note and mortgage given to secure repayment by paying the tion was originally directed. money to the banker to whom the applica Bills and notes passing through hands of bona fide purchaser rights of original payee. 2. The payee of a note unenforceable because of lack of consideration cannot, by repurchasing the paper after transferring it to a bona fide purchaser for value, without notice, acquire the rights of such purchaser, so as to hold the paper free from equities. - The rights of the payee of a note after purchasing it from a bona fide holder are considered in the note to Andrews v. Robertson, 54 L.R.A. 673, and that note is supplemented at page 78 of the note to Dispatch Printing Co. v. National Bank, 50 L.R.A. (N.S.) 74, on the general subject of the right of a purchaser with notice from a bona fide holder to the same protection as the latter. Also to right of purchaser, the same protection as the latter, see notes after maturity, from bona fide holder, to to Y. M. C. A. Gymnasium Co. v. Rockford Nat. Bank, 46 L.R.A. 784, and Miles v. Dodson, 50 L.R.A. (N.S.) 83. |