Lord v. American Mutual Accident Ass'n of Oshkosh, 89 Wis. 19

Lord v. American Mutual Accident Ass'n of Oshkosh

89 Wis. 19 | Wis. | 1894

Cassoday, J.

After the plaintiff had notified the defendant of his injury, and in September, 1891, the defendant’s soliciting agent called upon the plaintiff, and the plaintiff asked him to get him some money. Such agent thereupon reported such request, together with the facts in regard to the plaintiff’s condition, and that he was in serious need of *22money, to the defendant, and thereupon the defendant sent to the plaintiff the $50 mentioned. The affidavit or proofs of loss made by the plaintiff January 18, 1892, and mentioned in the foregoing statement, constitute what is called the “ defendant’s Exhibit 4 ” in the ninth and tenth findings of the jury. It is there found by the jury, in effect, that the plaintiff executed the same without a knowledge of its contents, and that in doing so, or in the alleged settlement, he made a gross error. Such proof of loss consisted of a blank furnished by the defendant and filled out by one of the plaintiff’s employers, and the plaintiff signed the same by his mark. There is testimony to the effect that the plaintiff could neither read nor write the English language; that he signed such proofs of loss without knowing that they contained a statement to the effect that the payment of $1.50 a week for twenty-six weeks should be a full discharge of all claim on account of such injury; and that upon receiving the $145 he expressly refused to sign a receipt in full. The admission of such parol testimony is assigned as error; but such admission, under such circumstances, has repeatedly been sanctioned by adjudications of this court. Schultz v. C. & N. W. R. Co. 44 Wis. 638; Bussian v. M., L. S. & W. R. Co. 56 Wis. 326; Leslie v. Keepers, 68 Wis. 123; Lusted v. C. & N. W. R. Co. 71 Wis. 391; Sheanon v. Pac. Mut. L. Ins. Co. 83 Wis. 507; Whitmore v. Kay, 85 Wis. 251. These cases hold, in effect, that one who signs a discharge or acquittance without knowing the contents or intending to sign such an instrument, is not bound by it. Here, such discharge or acquittance was not properly any part of the proofs of injury and loss, but an attempt to limit the amount of the claim and bar any further recovery. Had the question of such discharge been squarely presented to the plaintiff, it may be inferred from the testimony that he would have refused to sign it, as he did the receipt in full a day or so afterwards.

*23But the more serious question is whether the tearing off of three fingers wholly, and a part of the other, and cutting the hand, and destroying the joint of the thumb, as mentioned in the proofs, was the loss of one hand, “ causing immediate, continuous, and total disability ” of the same, -within the meaning of the contract of insurance. After careful •consideration we are constrained to hold that it was a question of fact for the jury; and the jury have found that such loss of the hand was entire. On the part of the defendant it is contended that there is no such thing as the loss of the hand unless the injury is such as to require the amputation of the hand above the wrist. That would be too much of a refinement upon language for practical purposes. The hand was for use; and, if it was injured so as to become useless as a hand, then the defendant became hable for its loss under the contract. This was held, in principle, in Sheanon v. Pac. Mut. L. Ins. Co. 77 Wis. 618; S. C. 83 Wis. 510.

The charge appears to be full and fair throughout. In fact, there are no specific exceptions calling for a review of any particular portion of it. Luedtke v. Jeffery, post, p. 136.

By the Oov/rt. — • The judgment of the circuit court is affirmed.