192 Mo. App. 159 | Mo. Ct. App. | 1915
Plaintiff held an accident policy of insurance issued to Mm by defendant in the principal sum of $7500.- He was bunting rabbits and while getting through a wire fence his gun was discharged into his left hand, so that it became necessary to amputate the thumb and the next, or index, finger. The
The joints named are those connecting the thumb and finger with the body of the hand. Whether the severance, or amputation, by the surgeon was at the joints, or below them, is the question in dispute. Plaintiff insists on the former and defendant on the latter.
The facts were these; the actual cutting, or severance, was through the bone of the thumb and finger two-eighths and three-eighths of an iifch, respectively, below the articulation, or to express it differently, below the point where the ends of the bones in the body of the hand and in the thumb and finger come together. It was far enough below to leave two stubs of the thumb and finger bones plainly to be seen in the X-ray picture taken of his hand, and plainly showing two ends or heads of the bones jointed together, the articulation not disturbed in either the thumb or finger. The evidence also showed that plaintiff could move, or work these joints.
But it was shown by plaintiff that there are structures which enter into the formation of a joint; these being bone, cartilage, ligament, fibro cartilage, and synovial membrane. Some of these extend considerably above and below the point of articulation or contact of the ends of the two thumb bones and the two finger, bones; and some of these are at the ends and some compose the covering of these ends of the bones. Plaintiff’s position is that severing either of the ends
But it seems to us, that plaintiff confounds the ‘1 structures ” below the point of articulation, which are necessary to sustain a joint, with the joint itself. This is shown by the first expert witness in his behalf, who stated that “A joint consists of the head of the bones entering into that joint, its cartilage, its ligaments and its synovial membrane.” If the ends of two boards are joined, there is a joint. The boards may be held in place, that is, the joint may be sustained by nailing a board on either side, extending each side of the point of junction, say, for three feet. These side pieces hold the boards together and thereby sustain the joint, but no one would think of calling them the joint itself; and if a carpenter was ordered to take his knife or saw and sever the boards at the joint, it would not occur to him that he was complying with the order by cutting through the hoard át a point away from the junction and leaving the end of each board undisturbed. In severing the side boards (and one of the main boards) he would be severing the structure which held the ends of the two main boards in apposition, but he would not disturb the joint. The contract, in using the word “joint,” fixed a place — a point of severance; it had no reference to the structures which must exist in order that a joint may be made. We do not mean to hold that for the severance to be “at the joint” within the meaning of the policy, that it must follow and coincide with the line of articulation, but only that it must be such as destroys the joint as a joint; that is, as an anatomical mechanism. That is to say, the joint must be dismembered.
In this view we are not subverting a rule which requires a liberal construction of insurance policies in
And in Fuller v. Ins. Ass’n, 122 Mich. 548, the provision of the policy was that liability arose when there was an amputation of the whole hand or foot, and the insured had only one-third of his foot cut off by the surgeon. It was held that there was no cause of action, notwithstanding that the entire foot was rendered useless; the court saying that the insurance was not for loss of the whole foot, which might mean loss of use of the whole foot, but was for an injury which shall cause an amputation of the whole foot. The latter being the plain contract of the parties, the court could not substitute another.
In Mady v. Switchmens’ Union, 116 Minn. 147, the insurance provision, though awkwardly expressed, covered a loss by physical separation “of four fingers of one hand, at or above the third joint; or of three fingers and thumb of one hand at or above, the third
In Brotherhood of Trainmen v. Walsch, 103 N. E. Rep. 759 (S. C. Ohio October, 1913) the insurance became effective when the insured “shall suffer the amputation or severance of an entire hand at or above the wrist joint.” The insured had his entire hand so crushed that it became useless, but only the thumb was amputated. It was held that there was no cause of action under the provision quoted.
. Plaintiff offered evidence of surgeons, as experts, to prove the anatomical, or scientific meaning of the word “joint” as applied to the finger, and that the amputation below the place of articulation was at the joint. Defendant objected to such evidence on the ground that the interpretation of the contract was for the court, that there was no ambiguiy in its terms and that the construction of the contract was addressed to the court. These objections were overruled. We think they should have been sustained. There was no ambiguity in the contract and it was for the court, not the jury, to say what it meant. [Bolt & Nut Co. v. Caldwell, 240 Mo. 358; Brannock v. Elmore, 114 Mo. 55, 64; Rogers v. Modern Brotherhood, 131 Mo. App. 353; Gerhart v. St. Ry. Co., 132 Mo. App. 546, 549; Wilmarth v. Ins. Co., 168 Cal. 536, 546; Fuller v. Ins. Co., 70 Conn. 647, 677.]“ In the first of these cases the Supreme Court said, “The problem in this case is not to declare the delicate graduation of meaning which the
Plaintiff takes the position that if the evidence be conceded to be improper, defendant condoned the ruling by offering an instruction submitting that as an issue to the jury. When evidence is admitted over the protest of a party, he may offer instructions on the issue thus forced upon him, without waiving his exception to such issue being put into the case. The same remark will apply to the instructions. An instruction was given by the court for plaintiff submitting that issue to the jury and one on the same subject, was asked by defendant and given. There is ardent dispute between counsel as to which of these was given first in point of time. This particular phase of the matter is of no consequence, since the record shows that that issue was forced into the case over defendant’s objection and exception. [Everhart v. Bryson, 244 Mo. 507, 516.]