Paetz v. London Guarantee & Acc. Co., Limited, of London, England

• Decision Date: 30 April 1934
• Parties: CHARLES H. PAETZ, RESPONDENT, v. LONDON GUARANTEE & ACCIDENT COMPANY OF LONDON, APPELLANT
• Court: Kansas Court of Appeals

71 S.W.2d 826

228 Mo.App. 564

CHARLES H. PAETZ, RESPONDENT, v. LONDON GUARANTEE & ACCIDENT COMPANY OF LONDON, APPELLANT

Court of Appeals of Missouri, Kansas City

April 30, 1934

Appeal from Circuit Court of Buchanan County.--Hon. John V. Gaddy Judge.

AFFIRMED (conditionally).

Judgment affirmed.

George W. Eastin for respondent.

Brown Douglas & Brown for appellant.

OPINION

TRIMBLE, J.--

This is an insured's action on a "Special Automobile Personal Accident Policy--Form AX 4868, limited to Automobile Accidents Only."

Insured's petition alleged that--

"On or about the 5th day of October, 1931, and during the term of said insurance, he was the owner of a certain Ford runabout, which he used as a pleasure car for family use, and that on said date while said car was standing in front of plaintiff's place of business at 1020 South 10th Street, in the City of St. Joseph, Missouri, and while in the exercise of due care upon his part, plaintiff undertook to crank said car, when said car kicked back, reversing said crank in plaintiff's right hand and with the result that said hand and the nerves thereof, and the inner linings over the arteries, veins, muscles and tendons were greatly sprained and bruised and particularly that the arteries, veins, nerves, muscles and other members and parts of said right hand in and about the right wrist and thumb became so injured and bruised that for a period of seventeen (17) weeks after said injuries, plaintiff was totally and continuously disabled from the use of his right hand and the members thereof and of his said right arm to the extent that he was unable to perform any kind of duty pertaining to his occupation of mattress maker; and that for a period of more than four (4) weeks after the termination of said total disability of said hand and arm, he was continuously partially disabled from the use of said right hand and arm to the extent that he was unable to perform one or more important daily duties pertaining to his occupation as a maker of mattresses."

The prayer of the petition was for a weekly indemnity of $ 25 during seventeen weeks of total disability, and $ 12.50 per week for four weeks partial disability, aggregating $ 475, together with ten per cent penalty and a reasonable attorney's fee for vexatious refusal to pay. The trial resulted in a verdict reciting that the jury "find the issues in said cause for the plaintiff and assess his damages in the sum of $ 575 (five hundred seventy-five no/100 Dollars)." From a judgment thereon, the defendant appealed.

The policy, after providing for insurance of $ 1500 for death, promised a weekly indemnity "against loss resulting from bodily injuries, effected during the period of this policy through accidental means directly and independently of all other causes, sustained by the Insured.

1. While operating, driving, riding in, demonstrating, adjusting, repairing, cranking, or working directly upon an automobile." (Italics ours.)

In clause A, the policy provided a "Schedule of Indemnities" for "Death, Dismemberment or Loss of Sight" and in clause B, relating to "Weekly Indemnity for Loss of Time," it provides that if the injuries shall not result in any of the losses defined in Clause A "but independently and exclusively of all other causes, shall:

"1. Total. From the date of the accident wholly and continuously disable the Insured to the extent that he can perform no kind of duty pertaining to his occupation, the Company will pay indemnity at the rate of Twenty-Five Dollars per week for the period of such disability, but not exceeding twenty-six consecutive weeks;

"2. Partial. Or, from the date of the accident, or from the date of the termination of total disability under part 1 of this Clause B, continuously disable the Insured to the extent that he is unable to perform one or more important daily duties pertaining to his occupation, the Company will pay weekly indemnity at one-half rate specified in part 1 of this Clause B, for the period of such disability, but not exceeding four consecutive weeks."

In Provisions 4 and 5 of Section 2, "Standard Provisions" of the policy, it is provided that--

"Provision 4. Written notice of injury on which claim may be based must be given to the Company within twenty days after the date of the accident causing such injury. In event of accidental death immediate notice thereof must be given to the Company.

"Provision 5. Such notice given by or in behalf of the Insured or beneficiary, as the case may be, to the Company at its Head Office in New York, N. Y., or to any authorized agent of the Company, with particulars sufficient to identify the Insured, shall be deemed to be notice to the Company. Failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible."

And under the heading "Additional Provisions" in Provision 22, the policy states--

"This policy does not cover injuries or death:

"(1) Sustained while . . . (not pertinent here).

"(2) Sustained by (a) any paid driver of a taxicab, patrol wagon, fire apparatus, automobile truck or other motor vehicle, or by any person employed to ride in or upon any of the foregoing, or to do manual or mechanical work in the operation, use, care, maintenance, upkeep, repair, adjustment or testing thereof, or (b) any city policeman or fireman during the course of employment, or by any person while working on, cranking, driving, or riding in or upon, any motorcycle, automobile truck, tractor, patrol wagon or fire apparatus, or aircraft of any description, or (e) any automobile mechanic or repairer while engaged in repairing, overhauling or testing any automobile."

The defendant's answer, after specifying the foregoing provisions of the policy, set up three defenses:

1. That the injuries "did not, from the date of the accident, wholly and continuously disable the plaintiff to the extent that he could perform no kind of duty pertaining to his occupation."

2. That "written notice of the injury on which plaintiff's claim is based was not given to the Company within twenty days after the date of the accident causing such injury," and

3. That "if plaintiff was injured, which fact this defendant denies, said injuries were sustained by him while cranking an automobile truck."

Defendant's demurrer at the close of plaintiff's evidence in chief was waived, when, after the demurrer to the evidence was overruled, defendant offered evidence and asked instructions in its behalf. [Davison v. Hines, 246 S.W. 295, 303; St. Louis v. Wright Construction Co., 210 Mo. 491.]

However at the close of all the evidence it again offered a demurrer thereto, and hence the correctness of the court's order in overruling the last demurrer is the open question on appeal, made so by appellant's point 2, charging error in that regard.

The first question, therefore, is, whether the evidence is sufficient to make it a question for the jury to say whether the injury disabled the plaintiff from the date of the accident to the extent that he could perform no kind of duty pertaining to his occupation?

In considering this question, remembering that the verdict was in plaintiff's favor, we can look only to the evidence in plaintiff's favor together with all reasonable inferences deducible therefrom, and must accept same as true. If there is any substantial evidence to support the verdict even though meagre and contradicted by defendant's evidence, we cannot disturb the verdict. [Robison v. Chicago Great Western R. Co., 66 S.W.2d 180, 186.] Of course, this is on the theory that there is no evidence of plaintiff which, unexplained, flatly contradicts his cause of action. In such situation a plaintiff himself destroys his own case, but that is not the situation here.

The evidence in plaintiff's behalf is that the accident causing the injury occurred on or about October 5, 1931; that about 4 o'clock of that day when plaintiff started to go home the engine was cold, the car having stood at plaintiff's place of business since 9 A. M. and the day was chilly; that in trying to crank his car the engine "backfired" and plaintiff's right hand was bruised in the fleshy part of the palm "in a circle from the thumb around the forefinger into the palm of the hand." For several minutes the pain was very severe but after massaging the hand, the pain "kind of died down" and plaintiff then cranked his car and went home. That night his hand was treated with liniment several times but in the morning the hand was "still sore" and liniment was again used and then the thumb was painted with mercurochrome. The pain was in his hand, and "a couple of days later" there was nothing visible on his hand and he could not locate the seat of his trouble, but when plaintiff pulled his finger back he found a black spot and the pain "was right in the center of the palm." He put a flaxseed poultice on it; the hand was swollen, "very painful and there was a throbbing sensation like a person had a sore tooth and it kept jumping like that." Thereafter he went to Dr. Geiger who lanced, or cut it open, "right in the palm of the hand." The cutting relieved the pain somewhat and some pus came out. This was on Saturday and Dr. Geiger told plaintiff to come back on Monday. The hand was getting worse and he (Dr. Geiger) opened up the whole palm of his hand and took a crooked instrument and "gouged it around and opened it; when he did that the corruption came out." Plaintiff's whole hand was swollen and two large (red) streaks were up his arm. Plaintiff had fever and could not lie down but had to sit up three nights. He was very...