Richardson v. Liberty Life Ins. Co., 601

• Decision Date: 24 May 1961
• Docket Number: No. 601,601
• Citation: 87 A.L.R.2d 475,119 S.E.2d 871,254 N.C. 711
• Parties: , 87 A.L.R.2d 475 Charlie RICHARDSON v. LIBERTY LIFE INSURANCE COMPANY.
• Court: North Carolina Supreme Court

Page 871

119 S.E.2d 871

254 N.C. 711, 87 A.L.R.2d 475

Charlie RICHARDSON v. LIBERTY LIFE INSURANCE COMPANY.

No. 601

Supreme Court of North Carolina.

May 24, 1961

Schoch & Schoch, by Arch K. Schoch, High Point, for plaintiff-appellee.

Jordan, Wright, Henson & Nichols, by Charles E. Nichols, Greensboro, for defendant-appellant.

PARKER, Justice.

Defendant offered no evidence. Its sole assignments of error are the refusal of the trial court to grant its motion for judgment of involuntary nonsuit made at the close of plaintiff's evidence, and the denial by the trial court of its like motion, when it stated it would offer no evidence.

The policy provides that it will pay plaintiff insured for loss of one hand by severance $2,000, if occurring while the policy was in force, and if plaintiff survived such injury at least ten days. The policy further provides 'that loss of four fingers entire of a hand shall be construed as loss of such hand.'

Defendant contends that the word 'entire' means 'whole' or 'total,' and, therefore, the four fingers of a hand must be entirely, i. e. wholly or totally, severed to meet the requirements for payment under the policy for loss of a hand. However, when the policy refers to fingers, it does not provide that severance of four fingers entire of a hand shall be construed as loss of such hand, but clearly and plainly and in explicit words provides 'that loss of four fingers entire of a hand shall be construed as loss of such hand. ' It is to be noted that while the policy provision speaks of the 'loss of four fingers entire of a hand,' it does not say loss of four fingers entire to the palm of the hand.

It is a thoroughly settled rule in the construction of a policy of insurance, which is reasonably susceptible of two interpretations, that that meaning will be given to it which is more favorable to the insured. Roach v. Pyramid Life Insurance Co., 248 N.C. 699, 104 S.E.2d 823; Gould Morris Electric Co. v. Atlantic Fire Insurance Co., 229 N.C. 518, 50 S.E.2d 295.

However, we have in mind that it is our duty to construe policies of insurance as written, not to rewrite them. Scarboro v. Pilot Life Insurance Co., 242 N.C. 444, 88 S.E.2d 133, 54 A.L.R.2d 407.

Webster's New Collegiate Dictionary, 2nd Ed., 1953, states: 'The hand, or manus, includes the phalanges, or fingers or fingers and thumb; the metacarpus, or hand proper; and the carpus, or wrist.'

The terms of the policy here are reasonably susceptible of this interpretation: The policy insures plaintiff against the loss of either hand by severance, and it insures him against the loss, not severance, of 'four fingers entire of a hand,' providing that such loss shall be construed as loss of such hand, and such provision as to loss of four fingers entire on a hand is not restricted or modified by the word 'severance' appearing in the terms of the policy as to the 'loss of either hand by severance.'

Counsel have not referred us to a case concerned with an accident policy containing a provision as to the loss of fingers similar to the one here, nor have we after a diligent search found one.

In Sheanon v. Pacific Mutual Life Ins. Co., 77 Wis. 618, 46 N.W. 799, 9 L.R.A. 685, 20 Am.St.Rep. 151, there was a provision for indemnity in case of the loss of 'two entire feet.' Plaintiff was accidentally shot in the back by a pistol ball which penetrated his spine, and produced an immediate and total paralysis of the lower part of his body, and entirely destroyed the use of both feet. The Court, after quoting the words of the policy to the effect that the company agrees to pay a certain sum if the insured, while the policy is in force, from a violent and accidental injury, which should be externally visible, should 'suffer the loss of the entire sight of both eyes, or the loss of two entire hands, or two entire feet, or one entire hand and one entire foot,' goes on to say: 'This is the language of the policy, and the question is, What does it mean, or what must be understood by it? Is its meaning that the insured is not entitled to recover the insurance money unless his legs and feet have been amputated or severed from his body, or does it mean that the injury must have destroyed the entire use of his legs and feet so that they will perform no function whatever? The contention of the learned counsel for the defendant is that the clause is to be understood in the former sense, and implies an amputation or physical severance of the feet from the body, and does not include an injury such as paralysis, though such injury actually deprives the insured of all use of his feet and legs. We cannot adopt such a construction of the contract. To our minds the loss of the hands and feet embraced in the policy is an actual and entire loss of their use as members of the body; and if their use is actually destroyed, so that they will perform no function whatever, then they are lost as hands and feet. In ordinary and popular parlance, when a person is deprived of the use of a limb, we say he has lost it. This is the ordinary sense attached to the word 'loss,' when used in such a connection. Now, if the feet and hands cannot be used for the purpose of moving about or walking, or for holding and handling things, they are in fact lost, as much as though actually severed from the body. The expression 'loss of feet' would generally be understood to mean a loss of the use of these members; and, if the lower portions of the plaintiff's body and his feet are completely paralyzed, and he is permanently and forever deprived of their use, he has suffered 'a loss of two entire feet,' within the meaning of the policy. This is the proper construction of the words of the contract. It is a forced and unnatural construction of the language, as here used, to hold that it means an actual amputation of these limbs, and does not embrace and include an entire deprivation of their use as members of the body. It is not necessary to go into any recondite or elaborate discussion of the language of the policy, but only to give it its ordinary and popular sense. And, understanding it in that sense, we are very clear that the complaint states a cause of action, and that the demurrer was properly overruled.'

In Sneck v. Travellers' Ins. Co., 88 Hun. 94, 34 N.Y.S. 545, 546, affirmed in a memorandum decision, 156 N.Y. 669, 50 N.E. 1122, the policy provided for the payment of a certain amount to insured for the 'loss by severance of one entire hand or foot. ' Plaintiff's surgeon testified: 'The fingers and heads of all the metacarpal bones were cut off...