McDonald v. Life & Casualty Ins. Co.

• Decision Date: 23 February 1935
• Citation: 79 S.W.2d 555,168 Tenn. 418
• Parties: McDONALD v. LIFE & CASUALTY INS. CO.
• Court: Tennessee Supreme Court

79 S.W.2d 555

168 Tenn. 418

McDONALD v. LIFE & CASUALTY INS. CO.

Supreme Court of Tennessee.

February 23, 1935

Error to Circuit Court, Davidson County; E. F. Langford, Judge.

Action by Joseph Hargrove McDonald against the Life & Casualty Insurance Company. To review an order of trial court dismissing action, plaintiff brings error.

Affirmed.

B. O Briley and R. C. Boyce, both of Nashville, for plaintiff in error.

Moreau P. Estes, of Nashville, for defendant in error.

CHAMBLISS Justice.

This suit was brought in April, 1933, to recover on an accident policy for the loss of a foot resulting from a collision, in 1931, of the motorcycle on which plaintiff was riding with an automobile. The policy was of the specifically limited type with a weekly premium of 10 cents. The defense was twofold (1) That the contract did not include or cover one riding on a motorcycle; and (2) that no recovery was provided for the loss of the foot or limb unless severed at the time of the accident, or within 30 days thereafter.

The case was heard by the trial judge on a stipulation of facts and dismissed. Plaintiff appeals.

The policy contracts for the payment of $1,000 for the loss of a foot "by the collision of or any accident to any private horse-drawn vehicle, or motor-driven car in which insured is riding," or from "being accidentally thrown from any such vehicle or car," etc.;. but this condition is plainly incorporated: "In every case referred to in this policy the loss of any member shall include only the loss by severance at or above the ankle or wrist joints" followed by this express limitation: "No indemnity will be paid *** where *** the loss of the members *** does not occur within thirty days of the accident."

It appears from the stipulation that, while "riding a motorcycle with side car attachment" for conveyance of merchandise, along an east and west alley in Nashville, extending from Third to Fourth avenues, an automobile, proceeding along a north and south alley extending from Church to Union streets, collided with the motorcycle at an intersection; that the "plaintiff was thrown violently from said motorcycle to the pavement." Quoting further from the stipulation: "Plaintiff suffered a compound comminuted fracture of both bones of his left leg between the knee and ankle. The blood vessels of said leg were cut, a large amount of the soft tissue of his leg was destroyed and there was a complete loss of the use of his right foot from and after said date. However, his leg was not quite completely severed at the time of and by reason of the said accident, there being a small amount of sound tissue at the point of the wound still connecting his leg, and his physician or surgeon, mistakenly hoping to save his foot and the lower part of his leg, did not complete the severance of his leg at said point at that time, but attempted to bind and heal said wound and save said leg. Thereafter, and more than 30 days after the said injury, it was found necessary as a result of said injury to amputate his foot or leg at the point of said wound above the ankle and between the ankle and knee and this was done by his said physician or surgeon."

The language of the stipulation follows that of the declaration, which charged that "plaintiff, while riding a motorcycle, with side car attached," was collided with and injured, and that the severance of the limb was made by the surgeon "thereafter, however, but more than 30 days after the injury." It does not appear from either the declaration or the stipulation how long a time elapsed after the injury was received before the limb was severed. The accident occurred on the 4th of October, 1931, and the suit was not filed until April 6, 1933, 18 months later. This, however, is material only in connection with the second defense of the company; namely, that loss by severance within 30 days of the injury is a condition of recovery.

We consider first the defense that plaintiff was riding on a motorcycle, and not " in" a "motor-driven...