Robinson v. Masonic Protective Ass'n , 87 Vt. 138 ( 1913 )

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 reasonably tended to show that the felon resulted from, and was the natural consequence of, a bruise of the finger within less than twenty-four hours from the time of the injury, without any intervening, cause. That it was an accidental injury if such a bruise was received by the plaintiff, no question is made.

Did the felon constitute an external and visible mark of wound, within the meaning of clause B of the policy! The word "wound” is defined in Bouvier’s Law Dictionary as follows: "Any lesion of the body. In this it differs from the meaning of the word when used in surgery. The latter only refers to a solution of continuity; while the former comprises not only these, but also every other kind of accident, such as bruises, contusions, fractures, dislocations, and the like.” The definition given by'Bapalje and Lawrence in their Law Dictionary, is exactly to the same effect, making the same distinction. And in Stewart’s Legal Medicine, a book published in 1910, section 100, the same distinction between the surgical and the legal definitions is noticed. In Thompson v. Loyal Protective Association, 167 Mich. 31, 132 N. W. 554, the insurance certificate was issued upon an application for membership, wherein it was agreed that there could be no claim for indemnity "for any disability where there shall be no external or visible sign or symptom of disease or bodily injury”; and bodily injury was defined to include "only the result of external, violent and accidental means, leaving on the body marks of contusion or wounds visible to the naked eye.” The insured was a "boiler house foreman” and the evidence showed that the claimed injury was received by him while working inside a boiler, cleaning it; that on getting home he went immediately to bed, and on his right side, between the hip and the back there was a red, inflamed mark, about half the size of his wife’s hand; that the next day he was suffering much pain, and on examination the physician found a discoloration of the skin, swelling and redness' over the right kidney and hip. The physician testified that this injury caused the insured’s death which occurred five days later; and that the death was wholly due to the external injury. It was claimed that the charge, shown in the third paragraph, was erroneous wherein the court said, ‘ ‘ The mark' visible to the eye on the body required by the policy need not be a bruise, contusion, laceration, or broken limb, but may be any visible indication of an internal injury, which may appear within a reasonable time after the injury is received, such for instance as a discoloration of the part of the body affected.” The court said this part of the charge must be read in connection with the sentence immediately following it: "In' legal medicine the word ‘wounds’ means injuries of every description that affect either the hard or soft parts of the body, and comprehends bruises, contusions, fractures, luxations, etc. In law the word means any lesion of the body.” Thereon the court of last resort further said the jury had been charged explicitly, in substance, that it must appear that the death was caused, exclusively of other causes, “by a bodily injury sustained through external violence and accidental means, leaving upon the body marks of contusion, or wounds, visible to the naked eye. The third paragraph excepted to explains and defines to the jury the meaning of the term ‘visible mark’ and the word ‘wound,’ as used in the insurance contract,” and there was no error in such instruction.

We are of the opinion that the word “wounds” as used in clause B of the policy upon which the action before us is based, should be given the so-called legal, rather than the surgical, construction, and that it includes the bruise of the plaintiff’s finger, if any there was, of which the felon was the direct and natural consequence; and that in such circumstances the felon constituted “external and visible marks” of the wound left upon the plaintiff’s body by the accidental injury, within the meaning of that clause of the policy.

The claim that no recovery can be had under- clause B, because the plaintiff’s injury did not “totally disable him from the date of the accident,” must also be determined against the defendant on the tendency of the evidence and the construction of the contract. As already seen, the evidence tended to show that the felon appeared within less than twenty-four hours from the time of the injury. It further tended to show that total disability resulted from the time of its appearance. The question then is, Was such disability within less than twenty-four hours after the time of the accident, though on the next calendar day, “from the date of the accident” within the meaning of that clause of the policy? A construction making the words “from the date of the accident” mean from the calendar day on which the accident occurred, would be so unreasonable in some cases as to render it almost certain that such a construction was not contemplated by the parties to the contract. For instance, the insured might meet with accidental injuries between eleven and twelve o’clock at night, it being within the last hour of the calendar day, and yet if that is the date contemplated by the policy, the total disability of the insured must begin within the same hour and perhaps instantly, in order to entitle him to the benefits provided by clause B. Assuming that this provision was inserted in the contract by the insurer with intentions reasonable and just toward the insured, we think the words, “date of the accident” as used in that clause, were intended to mean total disability from the day of the accident, reckoned from the time of the accident, that is, within twenty-four hours thereafter.

Judgment reversed and cause remanded.