Souders v. Commonwealth Casualty Co.

• Decision Date: 08 January 1923
• Docket Number: No. 14567.,14567.
• Citation: 246 S.W. 613
• Parties: SOUDERS v. COMMONWEALTH CASUALTY CO.
• Court: Missouri Court of Appeals

246 S.W. 613

SOUDERS v. COMMONWEALTH CASUALTY CO.

No. 14567.

Kansas City Court of Appeals. Missouri.

January 8, 1923.

Appeal from Circuit Court, Caldwell County; Arch B. Davis, Judge.

"Not to be officially published."

Action by A. L. Souders against the Commonwealth Casualty Company. From judgment for plaintiff, defendant appeals. Affirmed on condition of remittitur.

D. E. Adams, of Hamilton, for appellant.

S. M. Young, of Hamilton, and Ed. E. Aleshire, of Kansas City, for respondent.

BLAND, J.

This action, arising in a justice court, is to recover upon an accident insurance policy. The case was tried before the court without the aid of a jury, resulting in a judgment in favor of plaintiff in the sum of $73.28, and defendant has appealed.

The policy provided for an indemnity of $25 per week for total disability resulting from injuries to the insured "while actively engaged in farming by actual contact with and while operating a threshing, mowing, reaping or binding machine, harrow or plow." Plaintiff sued for 18 days' total disability, which amounted to $63.28, 3 weeks' partial diability, amounting to $37.50 and $10 doctor's fee, making a total of $100.78 without the doctor's fee. The policy does not provide for payment for partial disability, and therefore it is apparent that the judgment is excessive to the extent of $10 as plaintiff is not entitled to recover the doctor's fee for the reason that he did not comply with the conditions of the policy in regard to the filing of a receipt from the physician.

However, defendant insists that its demurrer to the evidence should have been sustained. In this connection it is insisted that plaintiff was not injured while engaged in a manner covered by the policy. The facts in this connection show that plaintiff was the proprietor of a blacksmith shop in Hamilton, Mo., which, however, was operated by one employed by him. At the time of plaintiff's injury he was engaged in operating a threshing machine, including a separator, engine, and other threshing machine accessories which were owned by him although he did not own the farm on which the threshing was being done. Plaintiff's duty in connection with the threshing was the running of the engine. In the course of the threshing operations a part on the engine became loose requiring the stopping of the machine. In order to locate the exact trouble, plaintiff started up the engine "real slow"; he could not find the trouble without the engine's being in motion. The engine was barely moving when plaintiff caught his finger between the eccentric shaft and the flywheel, resulting in the amputation...