— This is а suit upon an accident insurance policy, for the recovery of the “principal sum” of the policy, to-wit, $2,000, for the alleged “loss of one hand” by the assured within the meaning of the contract of insurance. Plaintiff suffered a nonsuit below, and, after unsuccessfully moving to have the same set aside, has appealed to this court.
By the policy sued upon the respondent company, agreed to pay the sаid principal sum thereof for (among other things) the “loss- of one hand,” sustained by the assured solely through external, violent and accidental means. Immediately following this section of the policy referring to specific losses appears the following stipulation, viz:
“In every ease referred to in this policy, the loss of any member or members above specified shall mean loss by severance at or above the wrist joints or. ankle joints.”
The evidence is to the effect that plaintiff received injuries to his left hand, solely through external, violent and accidental means, necessitating the amputation of the greatеr part thereof. Th.e thumb and first three fingers were removed, together with a large portion of the palm, leaving only the little finger and- a part of the palm supporting it. As a result of the injury, however, the little finger and thе portion of the
It is conceded that plaintiff proved all of the facts necessary to entitle him to a verdict for the principal sum of the policy, provided a recovery therеof may be had under the policy upon evidence disclosing the total loss of the use of the hand, as above stated, without proof of the actual physical severance thereof at or' above the wrist joint.
It is well settled that where, in an insurance contract of this character, the insurer indemnifies against the “loss” of a hand or of a foot, actiial physical severance of such member is not necessary to authorize a recovery under the policy, but it is sufficient if the assured has been wholly and permanently deprived of the use thereof. If by injury within the terms of the contract, the assured has been entirely deprived of the use of such member, he has suffered a “loss” thereof, within the meaning of this term, as fully as though the same had been actually amputated. [See Sisson v. Supreme Court of Honor,
And where the contract of insurance indemnifies the assured for “loss by severance” of one hand, instead of insuring against the “loss of a hand,” it is held not to be necessary that the entire hand, anatomically speaking, be removed; but if a large portion thereof be severed, and that which remains be abso
In Sneck v.- Insurance Co.,
And where it is provided that the “loss” of an arm or leg shall mean “actual amputation,” it is not necessary to a recovery that the entire аrm or leg shall have been severed. It is sufficient if so much thereof is severed as to leave the remainder useless for all practical purposes to which it may be put by the assured.
In Garcelon v. Accident Ass’n.,
And in Gahagan v. Morrisey,
In none of these cases,.however, was the language employed in the contract of insurance such as that contained in the clause before us. Where the assured has lost the entire use of a hand by the severance of a large portion thereof, he may be said to have suffered a “loss” of the hand “by severance,” as wаs held in Sneck v. Insurance Co., supra. And though it is provided that the word “loss” shall mean actual amputation, the amputation of an arm below the elbow may well be regarded as the loss of the arm within the meaning of this stipulation, as in Garcelon v. Accident Ass’n., supra. In such ease the assured, by “severance” or “amputation,” has suffered a loss of the member in question, in that he has, in such manner, lost the entire use thereof.
Likewise it mаy well be held “that the loss of a hand at or above the wrist joint” is sustained where the assured has lost the total use of a hand, as in Gahagan v. Morrissey, supra; for then the assured has lost the use of the hand to the extent specified, to- wit, to the writ joint.
But here the policy provides that the loss of a hand shall mean loss by severance at or above the tvrist joint. Not only is it provided that the loss of such member shall be by physical severance thereof, but the extent of such lоss is máde exact and definite by locating the precise point at or above which such severance shall take place.
In Fuller v. Insurance Ass’n.,
And in Chevaliers v. Shearer, 27 Ohio Cir. Ct. R. 509, the constitution of the association defined “the loss of a hand” as meaning “amputation at or above the wrist.” As a result of injuries, plaintiff’s right arm was permanеntly disabled, whereby he lost the entire use thereof, but neither the arm nor hand had been amputated. It was held that the plaintiff could not recover.
/ In the instant case, had the provision of the policy agreeing to indemnify plaintiff in the amount of the principal sum of the policy for the “loss of one hand” stood entirely alone, and unaffected by any other provision thereof, beyond doubt plaintiff would have been еntitled to recover, having lost the entire use of his hand. However, the very next paragraph of the policy provides, in unmistakable terms, what shall be meant by the “loss of one hand,” to-wit, the loss thereof by severance at of above the wrist joint. Plaintiff has not- suffered a loss of his hand by severance at or above the wrist joint; and if effect is to be given to the last mentioned provision plaintiff’s case must fail.
If any ambiguity or uncertainty of meaning could be said to inhere in the pertinent provisions of the policy, it would readily be resolved in favor of the insured and against the insurer. Such is the well established and wholesome doctrine with respect to the construction of insurance contracts. As is said by Lamm, J., in Mathews v. Modern Woodmen, 236 Mo. l. c. 342,
“It is a just and settled rulé that the restrictive terms of insurance contracts shall be taken most strong against the insurer. The doсtrine of contra proferentem is strictly applied with unaccommodating vigor, and . . . ambiguities are blandly resolved in favor of the insured.”
But it appears that the defendant has chosen apt language to indicate that it does not agree to indemnify the insured for the loss of a hand, unless such loss shall consist in the actual physical severance of the hand at or above the wrist joint. It is by no means likely that the policy-holder so understood, or that he would knowingly have accepted the policy with such restrictive limitations upon his right to recover the indemnity for the loss of a hand or fоot; hut we can find the intention of the parties only from the language employed in the contract, having regard to the rules of interpretation which may he applied to contracts of this character. ■We cannot “blandly” construe the troublesome provision out of the contract, and disregard it altogether; for however great may be our inclination or duty to protect a policy-holder against intricate or obscure technical provisions designed for the avoidance of liability on the part of the insurer, we cannot make a contract for the parties.
The stipulation in question, as we havе said, follows immediately that portion of the policy providing for specific losses, in the same type in which the body of the policy is printed.. Its meaning appears to he plain and unmistakable. It pointеdly defines what shall constitute the “loss of a hand” so as to entitle the assured to the indemnity provided therefor. Under the circumstances it cannot well he said to consti
Our conclusion is that the learned trial judge committed no error in forcing plaintiff to a nonsuit. The judgment must therefore be affirmed. It is so ordered.