Kimbrough v. Nat. Protec. Ins. Assn.

• Decision Date: 01 December 1930
• Docket Number: No. 16883.,16883.
• Citation: 35 S.W.2d 654
• Parties: H.T. KIMBROUGH, APPELLANT, v. NATIONAL PROTECTIVE INSURANCE ASSOCIATION, RESPONDENT.
• Court: Missouri Court of Appeals

35 S.W.2d 654

H.T. KIMBROUGH, APPELLANT, v. NATIONAL PROTECTIVE INSURANCE ASSOCIATION, RESPONDENT.

No. 16883.

Kansas City Court of Appeals. Missouri.

December 1, 1930.

Appeal from Circuit Court of Ray County. — Hon. Ralph Hughes, Judge.

REVERSED AND REMANDED (with directions).

Charles C. Madison for appellant.

P.H. Jackson for respondent.

BOYER, C.

We find the statement made by appellant is a fair presentation and adopt it as follows:

"This suit is based upon an accident insurance policy providing for an indemnity of $1,200 for the loss of the sight of both eyes. A verdict and judgment in favor or plaintiff for $1,209.95 was entered. The motion for new trial filed by defendant was sustained upon the ground that the court erred in refusing an instruction in the nature of a demurrer to the evidence. Plaintiff has prosecuted this appeal from the order setting aside the judgment and granting a new trial.

"The insuring clause in policy upon which recovery is sought, contains the following provisions:

"`Does hereby insure H.T. Kimbrough (herein called insured) for a term of one year, from noon, standard time, at the place of insured's residence, of the day the official premium receipt for this policy is dated, against death, dismemberment, loss of sight, or disability resulting solely from bodily injuries effected, directly and independently of all other causes, through external violent and accidental means, subject, however, to all the terms, provisions and limitations herein contained.'

"There follows under a portion of the policy designated as `Part I' a recital that the company will pay for loss of the sight of both eyes, $1,200. There is also enumerated in such section numerous other classes of injuries and indemnities therefor.

"Under a separate heading `Part II' appears the following:

"`Sustained:

"`A. By the wrecking or disablement of any privately owned automobile of the pleasure car type in which the injured is riding or driving, or is accidentally thrown from within such wrecked or disabled automobile.'

"Then follow other alphabetically designated clauses which have no bearing upon the matter involved in this case.

"The answer of defendant in addition to the denial of certain facts set forth in the petition specifically pleads `Clause A,' above quoted, as a limitation of the insuring clause of the policy, and denies that the injuries came within the purview of the language of such limitation.

"The evidence of plaintiff was to the effect that he paid the premium and obtained the policy in question on or about November 25, 1927; that the accident in question occurred on March 9, 1928. The evidence further shows that the plaintiff was at the time of the accident about sixty-one years of age, a resident of Ray County, and that the accident occurred about seven miles northeast of the town of Hardin, in Ray County, Missouri. The plaintiff's description of the accident is that he left his farm, where he had been making or repairing some fence, seven or eight miles northeast of Hardin, in his Buick touring car, drove out onto the highway, and proceeded toward home in a westerly direction. He fixed the time at about 5:15 or 5:30 in the afternoon, and states that in undertaking to pull around some mules on one side of the road the left front fender of his car collided with the hub of the hind wheel of a wagon which was being driven in the road, and which on account of facing the sun he was unable to avoid. As a result of this collision he was thrown with considerable force, his head striking some portion of the interior of his car. He proceeded to his home, where his wife discovered a black and blue spot on his forehead.

"Although it was the purpose of plaintiff to return next day to finish the work he was doing on his farm, he was unable to do so on account of the condition of his eyes, which were later examined by Dr. Grimes of Hardin, and still later he was taken to the Bell-Memorial Hospital at Kansas City for treatment and examination by Dr. Major. The evidence of the plaintiff and others, including Dr. Major and Dr. Grimes, is that he became totally blind in both eyes. Plaintiff's description of the nature of the accident, which is the only evidence upon that point, as developed not only upon direct examination but upon cross-examination by defendant's counsel, is that the fender of plaintiff's car came into contact with the left hub of the wagon, bending the fender down from four to six inches, but not killing the engine, and that he was able to proceed to his home where he repaired the damage, by putting his foot against the wheel, pulling the fender up as best he could, and by taking a sledge hammer and battering it back into place.

"In his deposition, Dr. Major stated that the blindness was caused by a detachment of the retina which could be caused by a blow such as plaintiff received, and on hypothetical question, gave it as his opinion that it was caused by such a blow. The evidence showed that this was the only blow received by plaintiff within such length of time as could have had any bearing upon the result. Dr. Major also testified as to certain physical conditions of plaintiff that might have broken down his resistance to an injury such as the one described.

"Dr Grimes also described plaintiff's condition, attributed the blindness to the detachment of the retina, and said it could have been caused by a blow such as plaintiff received. Dr. Grimes and Dr. Major differed as to whether or not the plaintiff had cataracts, Dr. Grimes stating that none existed and that Dr. Major in his report had not stated such condition. Other corroborative evidence was given as to condition of plaintiff's eyes up to immediately before the accident, and that he was unable thereafter to get about or make use of his eyes.

"The defendant offered no evidence, and upon the instructions of the court, the jury returned a verdict for $1,209.95."

We may add to the foregoing that the evidence also shows that plaintiff met a team and a loaded wagon; that in attempting to pass, the left front wheel of the automobile struck the left hub of the wagon; that the fender was bent, and plaintiff did not know of any other damage; there was a jar; the car had glanced off; it glanced the front end of the car around until it passed the hub; plaintiff was thrown and the side of his head was "hit up to the side of the top where there was an arm or shoulder." Plaintiff was not thrown out of the car and ran it on home.

The petition is based upon the policy and upon facts shown in evidence. The jury was authorized to find for plaintiff upon a finding that the car was "disabled" and upon a finding of other requisite facts. No question arises upon the pleadings or the propriety of instructions if plaintiff was entitled to submit his case.

Respondent, in brief and argument insists that appellant failed to make a prima-facie case in that there was lack of proof showing causal connection between the injury and the loss of sight, and that the record shows plaintiff was afflicted with diseases that could cause his blindness. It is obvious from the statement of facts that there was sufficient substantial evidence upon which the jury could predicate its verdict that plaintiff sustained loss of sight on account of the injury received.

The case on appeal is briefed and argued by appellant, and in the main by respondent, on the sole question of the proper construction to be given the contract of insurance. The controversy centers upon the meaning and effect of paragraph A in Part II. It is shown in the statement. Respondent contends that it is a limitation upon the insuring clause and that plaintiff cannot recover unless his case be brought strictly within the literal meaning of said paragraph, and upon a showing that plaintiff was injured "by the wrecking or disablement" of an automobile; that the evidence shows the automobile was not wrecked or disabled; and that the meaning of the policy is plain and subject to only one construction. Appellant contends that the purpose for which the policy was issued was to insure plaintiff against bodily injuries and not against damage to his automobile; that the contract must be given a reasonable construction; that whether or not paragraph A amounts to a limitation of the insuring clause, it involves nothing but a question of fact for the jury under proper instructions; and further, that the language of the policy indicates, and that it was calculated and intended to lead the insured to believe, that he would be protected in the event of an accident resulting from a collision of a motor car driven by him; and contends for that construction which is applied in all cases where there is a question of doubt as to the true intendment of the policy or where it is susceptible of two or more interpretations; that the words "wrecking," "disablement," and "thrown from within" manifest a purpose to cover all injuries growing out of collisions, and that the degree of disablement is unimportant; and also that the word "dis...