Guilvezan v. Union of Roumanian B. & C. Soc. of America

• Citation: 287 S.W. 787
• Decision Date: 21 September 1926
• Docket Number: No. 19424.,19424.
• Court: Court of Appeal of Missouri (US)
• Parties: GUILVEZAN v. UNION OF ROUMANIAN BENEFICIAL & CULTURAL SOCIETIES OF AMERICA et al.

287 S.W. 787

GUILVEZAN v. UNION OF ROUMANIAN BENEFICIAL & CULTURAL SOCIETIES OF AMERICA et al.

No. 19424.

St. Louis Court of Appeals. Missouri.

September 21, 1926.

Rehearing Denied November 17, 1926.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be officially published."

Action by Floria Guilvezan against the Union of Roumanian Beneficial & Cultural Societies of America and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Montague Punch, of St. Louis, for appellants.

Brackmann, Hausner & Versen, of St. Louis, for respondent.

BENNICK, C.

This is an action instituted by plaintiff to recover from defendants the sum of $700 alleged to be due as a benefit by reason of a personal injury sustained by him on September 15, 1919, while in the employ of the Home Cotton Mills, in the city of St. Louis, Mo., whereby plaintiff lost (as he contends) four fingers from his left hand. The verdict of the jury was for plaintiff for the sum of $700 with interest, or for the total amount of $896, and judgment was rendered thereon, from which defendants have appealed.

The petition is in the usual form. In the answer it was alleged that plaintiff was entitled to recover only the sum of $160, which said sum was tendered in court for the use and benefit of plaintiff, and that his injury consisted of the loss of but two fingers.

The reply was conventional.

The evidence disclosed that defendants were associated together in the transaction of business in the state of Missouri, and that plaintiff was a member of such societies, and by reason of his membership paid monthly dues to defendants, whereby he was entitled to receive benefits for any personal injury sustained, the amounts of said benefits being regulated by the by-laws of defendants. At the time his injury was sustained plaintiff was engaged in the operation of a cotton machine, and at the exact moment of his injury he was picking cotton out of the machine, which had become choked. While so engaged the cylinders of the machine revolved, catching his left hand and injuring the four fingers thereof.

Plaintiff was taken to Dr. William Demko for treatment. The first three fingers were amputated by the doctor on the same day. The little finger had minor abrasions and lacerations and the soft tissues were badly mashed. After the operation the hand was kept in bandages for a period of six weeks, at the expiration of which time the bandages were removed, and an attempt was made to restore the function of the little finger by massaging, baking, and the use of hot applications. This treatment continued for a further period of three months, but without success, inasmuch as ankylosis or stiffening of the joints of the little finger formed, so that plaintiff was unable to bend it. This condition in the opinion of Dr. Demko was permanent.

The by-laws in force and effect at the time plaintiff's injury was received provided that the sum of $700 should be paid for a "heavy accident," and that the loss of four fingers from the same hand was considered as such; that for the loss of the small finger the sum of $25 should be paid, for the loss of the middle finger $35, and for the loss of any other finger $50.

Shortly after plaintiff was injured he was requested by defendants to present his claim for allowance. This request was complied with, plaintiff, however, making claim for the loss of only three fingers, due to the fact that he was at that time in hopes that he would recover the use of his little finger. In due time the claim was approved, and a check for $135 was sent plaintiff in full settlement, which check, however, he refused to receive, because in the meanwhile he had ascertained that stiffness was developing in his little finger. Some sixty days after his injury was received, plaintiff presented a second claim, based upon the loss of four fingers. A hearing on his claim was had according to the rules of defendants, and as a result plaintiff was offered an additional sum of $25 for the injury to the little finger, the additional offer being in turn also refused.

At the close of all the evidence defendants requested the court to instruct the jury that their verdict must be for plaintiff, but only for the sum of $160. This instruction was refused by the court, to which action error is assigned. In reviewing the evidence to determine whether this instruction should have been given, we find no dispute as to the loss by plaintiff of three fingers at or about the second joint. Such loss would have entitled plaintiff to the sum of $135 under the by-laws of defendants. When the second claim was filed, defendants voluntarily agreed to pay plaintiff an additional sum of $25 for the injury to his little finger. However, if all four fingers were lost within the meaning of the by-laws, plaintiff was clearly entitled to the sum of $700. Defendants argue in their brief that the little finger could be considered as lost only if the injury to it was such as to actually destroy its entire use,...