Robinson v. Masonic Protective Ass'n

• Decision Date: 13 October 1913
• Court: Vermont Supreme Court
• Parties: ROBINSON v. MASONIC PROTECTIVE ASS'N.

88 A. 531

87 Vt. 138

ROBINSON

v. MASONIC PROTECTIVE ASS'N.

Supreme Court of Vermont. Chittenden.

Oct. 13, 1913.

Exceptions from Chittenden County Court; William H. Taylor, Judge.

Assumpsit on an accident insurance policy by Joseph W. Robinson against the Masonic Protective Association. Verdict for defendant, and plaintiff excepts. Reversed and remanded.

Clause B of the policy is as follows: "In case of accidental injuries which shall result from violent, external and involuntary causes, shall leave external and visible marks of wounds, fracture, or dislocation upon the body of the insured, and shall not cause his death within ninety days, but shall totally disable him from the date of the accident, and for not less than the next seven days, the sum of twenty dollars per week during such total disability. * * * "

At the close of the evidence the court granted defendant's motion for a directed verdict, because the injury did not leave an external and visible mark of a wound.

The evidence tended to show that in the forenoon of July 8, 1911, plaintiff's finger began to swell, and a frog felon of the severest kind developed, which totally disabled plaintiff until September 16, 1911. It appeared that on July 7, 1911, plaintiff was working as road commissioner, and that in the afternoon he used an iron bar in helping to replace those stones, and thereafter did no manual labor up to the time in the forenoon of the next day when his finger began to swell and became painful. The exceptions state that "plaintiff could not tell when or that he received an injury to his finger." The physician who examined plaintiff's finger in the afternoon of July 8th testified that it was then badly swollen, but that he noticed no abrasion of the skin; that he then called it a felon, "the most severe type of felon"; that a felon is generally due to an injury; that an injury "most invariably" produces a felon, which he would expect to develop "immediately, soon after, within a day or two."

The physician who operated on the finger about a week after the felon appeared testified that in his opinion the felon was the direct consequence of "some bruise or injury of some sort to the finger," and that in his opinion a felon never occurs without an injury. He further testified as follows: "Q. In your judgment, could a person receive an injury or a jam that within 12 hours would produce such a condition as this man had, and he not know it at the time he received it? A. Yes, sir; I think so. Q. What sort of injury would that be? A. Well, he might have got his finger pinched between a couple of stones, or hurt it on the handle of a shovel or crowbar, without being conscious of it at the time it happened. Q. And still within 10 or 12 hours be in the condition the finger was, swollen and painful, so that he could not sleep? A. Yes, sir."

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Cowles & Stearns, of Burlington, for plaintiff.

Rufus E. Brown and Sherman R. Moulton, both of Burlington, for defendant.

WATSON, J. The plaintiff cannot recover under clause B of the policy, unless the felon on his finger was due to an accidental injury resulting from some violent, external, and involuntary cause, leaving external and visible marks of a wound upon the finger, which totally disabled him from the date of the accident. He could not tell when, nor that he received an injury to the finger upon which the felon appeared. But there was evidence tending to show that on July 7, 1911, he was working as road commissioner with men and teams drawing gravel and replacing fallen stones in the abutment of a bridge, and that after dinner of that day he helped his men in replacing such stones, using an iron crowbar. He did no manual labor, after thus helping to replace the stones, up to the time in the forenoon of the next day when, according to the tendency of the evidence, his finger began to swell and became painful. The physician who examined the plaintiff's finger in the afternoon of the latter day did not notice any abrasion of the skin. The finger was badly swollen, inflamed, and reddened. It grew worse steadily, and a frog felon of the most severe kind developed.

We think the evidence fairly and...