Aurnhammer v. Bhd. Acc. Co.

• Decision Date: 20 January 1925
• Citation: 250 Mass. 563,146 N.E. 47
• Parties: AURNHAMMER v. BROTHERHOOD ACC. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

250 Mass. 563

146 N.E. 47

AURNHAMMER

v.BROTHERHOOD ACC. CO.

Supreme Judicial Court of Massachusetts, Hampden.

Jan. 20, 1925.

Exceptions from Superior Court, Hampden County; Alonzo R. Weed, Judge.

Action of contract by Charles F. Aurnhammer against the Brotherhood Accident Company to recover on accident insurance policy. Directed verdict for plaintiff, and defendant excepts. Exceptions overruled.

Green & Bennett, of Springfield, for plaintiff.

W. H. Brooks, J. P. Kirby, D. H. Keedy, and C. Brooks, all of Springfield, for defendant.

CARROLL, J.

This is an action of contract upon an accident insurance policy. It provided (clause 1) that the insured would be paid $9 a week indemnity, if he suffered any bodily injury of the kind set out in the policy, and by clause K, a special indemnity of $60 per week, if the bodily injury should ‘be received while said insured is riding as a passenger in any railway passenger car, operated by * * * electricity, * * * and such injury [should] be due directly to or in consequence of the wrecking of said car.’

The parties agreed that the plaintiff was a passenger upon an open, 15-bench passenger car, operated by electricity, when it collided with another car; that:

‘The impact of said collision caused the plaintiff, who was sitting about in the middle of the car, to be thrown first forward and then backward’; and that he ‘sustained injuries * * * which * * * totally disabled him for the period of seven weeks and three days from the date of the accident.’

It was also agreed that the dashboard and controller, at the end where the collision occurred, were bent, ‘displaced and forced backward against the seat in front of the front platform partition’; that the air pipes were severed at this end of the car; that the brake standard and handle by which the brakes were operated were forced backwards and disabled; that the partition between the front platform and the rest of the car was damaged and the glass broken; that the bonnet (which is the part of the roof built over the front platform) was crushed, the front part of the running board was damaged, four, five or six uprights on one side of the car were broken, and the brass castings which fastened the seats to the standards were bent; that the collision did not derail the car, and it was brought back to the barn at Springfield under its own power; that for this purpose the controller and the hand brake at the other end of the car were used; that the air brakes could not be operated on the return trip; that the value of the car was about $9,000, and cost of repairs, including labor, amounted to about $260.

The plaintiff gave the defendant written notice of injury and seasonably sent the company proof of loss on the form furnished by the defendant. In this notice and in the proof of loss the plaintiff stated that his injury was due to a collision.

The defendant requested the court to rule that there was not sufficient evidence that the plaintiff's injury was due to the wrecking of the car; that there was not sufficient evidence that the collision and the injuries to the car constituted a wrecking of the car, and the plaintiff was not entitled to recover under clause K; that the plaintiff was not entitled to recover an indemnity exceeding that set out in clause 1, and ‘there is no evidence sufficient to warrant the jury in finding that due and sufficient proof of loss was furnished the defendant to permit recovery under clause K of this policy.’ The court ruled that there was no disputed fact for the consideration of the jury; that the plaintiff's injury was due directly to or in consequence of the wrecking of the car in which he was riding within the meaning of clause K, and directed the jury to return a verdict for the plaintiff in the sum of $544.22, it being agreed that this amount is correct if the plaintiff was entitled to recover under clause K. The defendant excepted to the refusal to grant its request for rulings, to the rulings given, and to the direction of a verdict for the plaintiff.

The question whether there was a ‘wrecking of the car’ within the meaning of clause K of the policy was for the court to decide; as there was no evidence that the word ‘wrecking’ had a special or local significance, there was nothing for the jury to decide, and no error in the court deciding the question. Campbell v. Whoriskey, 170 Mass. 63, 64, 48 N. E. 1070. The parties being in agreement concerning what actually occurred, the construction of the contract and their rights thereunder presented no disputed question of fact for the jury to pass on. See Eaton v. Smith, 20 Pick. 150, 156;Waldstein v. Dooskin, 220 Mass. 232, 107 N. E. 927. The defendant relies on McDonough v. Metropolitan Life Ins. Co., 228 Mass. 450, 117 N. E. 836;New York Central & Hudson River Railway v. York & Whitney Co., 230 Mass. 206, 119 N. E. 855, and St. John Brothers Co. v. Falkson, 237 Mass. 399, 130 N. E. 51. They are not in conflict with this principle; in these cases more than one rational inference of fact from the evidence was possible.

The meaning of the word ‘wreck’ has been passed on in many cases arising under maritime law. In such cases the word has a technical significance and is descriptive of a vessel that is a total loss, and may be abandoned by the owner. Commonwealth Ins. Co. v. Chase, 20 Pick. 142, 145;Taber v. China Mutual Ins. Co., 131 Mass. 239. A ship becomes a wreck, in the words of Chief Justice Parsons (Wood v. Lincoln & Kennebeck Ins. Co., 6 Mass. 479, 482 )--

‘when, in consequence of the injury she has received, she is rendered absolutely innavigable, or unable to pursue her voyage, without repairs exceeding the half of her value.’

See Proctor v. Adams, 113 Mass. 376, 18 Am. Rep. 500, where it was said that a...