Newman v. Standard Accident Ins. Co.

• Decision Date: 14 June 1915
• Docket Number: No. 11675.,11675.
• Citation: 177 S.W. 803,192 Mo. App. 159
• Parties: NEWMAN v. STANDARD ACCIDENT INS. CO.
• Court: Missouri Court of Appeals

177 S.W. 803

192 Mo. App. 159

NEWMAN v. STANDARD ACCIDENT INS. CO.

No. 11675.

Kansas City Court of Appeals, Missouri.

June 14, 1915.

Rehearing Denied July 2, 1915.

Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge.

Action by Chester Newman against the Standard Accident Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded, with directions.

Warner, Dean, McLeod & Langworthy, of Kansas City, for appellant. Hogsett & Boyle, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff held an accident policy of insurance issued to him by defendant in the principal sum of $7,500. He was hunting rabbits, and while getting through a wire fence his gun was discharged into his left hand, so that it became necessary to amputate the thumb and the next, or index, finger. The policy contained the following provision:

"For the loss of thumb and index finger of either hand by severance at or above metacarpophalangeal joints, one-third of the principal sum" of $7,500.

Other parts of the policy provided for weekly indemnity for loss of time arising from other character of injuries. Plaintiff's action is to recover one-third the principal sum under the clause quoted. Defendant denies that he has such right, but concedes a liability for weekly loss of time, and offered to have judgment rendered therefor.

The joints named are those connecting the thumb and finger with the body of the hand. Whether the severance, or amputation, by the surgeon was at the joints, or below them, is the question in dispute. Plaintiff insists on the former,. and defendant on the latter.

The facts were these: The actual cutting, or severance, was through the bone of the thumb and finger two-eighths and three-eighths of an inch, respectively, below the articulation, or, to express it differently, below the point where the ends of the bones in the body of the hand and in the thumb and finger come together. It was far enough below to leave two stubs of the thumb and finger bones plainly to be seen in the X-ray picture taken of his hand, and plainly showing two ends or heads of the bones jointed together, the articulation not disturbed in either the thumb or finger. The evidence also showed that plaintiff could move, or work, these joints.

But it was shown by plaintiff that there are structures which enter into the formation of a joint these being bone, cartilage, ligament, fibro cartilage, and synovial membrane. Some of these extend considerably above and below the point of articulation or contact of the ends of the two thumb bones and the two finger bones; and some of these are at the ends and some compose the covering of these ends of the bones. Plaintiff's position is that severing either of the ends of these bones, though so far away from the point of articulation as to leave a stub three-eighths of an inch long, is severing the joint. But it seems to us that plaintiff confounds the "structures" below the point of articulation which are necessary to sustain a joint, with the joint itself. This is shown by the first expert witness in his behalf, who stated that: "

"A `joint' consists of the head of the bones entering into that joint, its cartilage, its ligaments, and its synovial membrane."

If the ends of two boards are joined, there is a joint. The boards may be held in place that is, the joint may be sustained by nailing a board on either side, extending each side of the point of junction, say, for three feet. These side pieces hold the boards together and thereby sustain the joint, but no one would think of calling them the joint itself; and, if a carpenter was ordered to take his knife or saw and sever the boar(.s at the joint, it would not occur to him that he was complying with the order by cutting through the boards at a point away from the junction and leaving the end of each boards undisturbed. In severing the side boards (and one of the main boards), he would be severing the structure which held the ends of the two main boards in apposition, but he would not disturb the joint. The contract, in using the word "joint," fixed a place, a point, of severance; it had no reference to the structures which must exist in order that a joint may be made. We do not mean to hold that for the severance to be "at the joint," within the meaning of the policy, it must follow and coincide with the line of articulation, but only that it must be such as destroys the joint as a joint; that is, as an anatomical mechanism. That is to say, the joint must be dismembered.

In this view we are not subverting a rule which requires a liberal construction of insurance policies in favor of the insured. In grading compensation to the character of injury, the company has a right to stipulate that the severance shall be at the exact point specifically stipulated, before the sum named for that character of injury shall be due. And, when thus plainly expressed, the courts must enforce them. Thus in Wiest v. U. S. H. & A. Ins. Co., 186 Mo. App. 22, 171 S. W. 570 (St. Louis Court of Appeals), the policy provided for insurance for the "loss of one hand " * by severance at or above the wrist joints." The insured lost all of his hand except his...