
    Robert Gale, App'lt, v. The Mutual Aid & Accident Association, Resp't.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1893.)
    
    Insurance (accident)—Visible signs of injury.
    In an action upon an accident policy to recover indemnity for disability arising from injuries sustained by plaintiff, it appeared that the policy contained a provision that benefits should not extend to any injury of which there should be no external or visible signs, and the physicians who had examined plaintiff all testified that he was severely injured in his diaphragm and recti muscles, but that there was no objective evidence of the same visible to the eye upon his person, but it could be ascertained by manipulating the muscles, and the trial court granted a nonsuit. Reid, that the provision should have a reasonable and practical construction; the evidence of injury must be external, objective, but not necessarily visible to the eye; if it can be ascertained by applying the hand upon the body, it is sufficient.
    Appeal from a judgment of the Monroe county court dismissing the complaint, and from an order denying a motion for a new trial upon the minutes.
    
      Martin W. Cooke, for app’lt;
    
      Henry M. Hill, for resp’t.
   Lewis, J.

The action was brought upon an accident policy issued to the plaintiff by the defendant, to recover indemnity for disability arising from injuries claimed to have been sustained by the plaintiff while engaged in lifting.

The certificate of membership contained a provision that benefits under the certificate should not extend to disability caused by disease or to any injury of which there should be no external or visible signs.

It was, therefore, incumbent upon the plaintiff to show, in order to maintain his action, that there was.upon his body an external and visible mark or sign of the injury he claimed to have sustained. The trial court held that he had failed to make such proof, and hence granted a non-suit. The plaintiff contends that there was evidence on that point which should have been submitted to the jury.

The plaintiff was engaged with an assistant at the time he claimed to have sustained his injuries in lifting a heav}7 iron fire pot to a furnace on to an elevator. The assistant’s hands slipped off from the fire pot and allowed the whole weight of the iron to rest upon the plaintiff, which, as he claimed, strained his diaphragm and recti muscles. He was thereby, as he alleged, so disabled that he was confined to his house unable to work for a long time. The recti muscles lie along each side of the median line of the abdomen, just under the skin, and in close proximity to the diaphragm. The plaintiff was, after receiving his injuries, examined by a number of .physicians who were called as witnesses, and who testified that they examined the plaintiff and found him in great distress, having difficulty in taking a long breath, that the filling of his lungs seemed to draw upon the recti muscles and apparently caused the patient to suffer pain in the locality of these muscles. They testified that there was no objective evidence visible to the eye upon the plaintiff's person showing that these muscles had been injured; but that they ascertained, by manipulating the muscles, that they were rigid and tense, and that, such a condition of the muscles was evidence that they were painful; that pressure upon them caused the patient to suffer pain, which was evidence, to their minds, that they had received an injury.

Their testimony tended to show that the muscles were so located near the exterior of the body that they could be readily and easily felt with the hand. They testified that while a person could voluntarily make these muscles rigid as the plaintiff’s appeared to be when they examined him, that they applied well known tests, which they described, to ascertain if the plaintiff was, in fact, feigning, and that they learned by such tests that he was not voluntarily making his muscles tense. They testified that they were fully satisfied that the plaintiff had sustained an injury to these muscles, and they believed that was the cause of his disability. There was an entire absence of any fever, which was evidence to their minds there was no inflammation, and that the patient was not suffering from any disease like pleurisy or rheumatism, but in their opinion his condition was caused by a strain. The surgeons testified that they were aided in locating the injuries by information derived from the plaintiff.

Dr. Briggs testified: “ It is my opinion that Mi1. Gale, when I visited him, was suffering from a muscular strain of the diaphragm and recti muscles. If nothing had been said by Mr. Gale about over-lifting, from the symptoms I obtained, I should have supposed his case was a strain. If it were not for the information I got from him, I would have been puzzled to know what it was. In other words, without the explanation he gave me, I would have found it hard to tell what it was. * * * And every physician would be at sea every day, were he debarred from receiving the statement of his patient, and so he would be in a case like this.”

Dr. Briggs evidently meant to be understood by this evidence that he would have had difficulty in locating the precise muscla that had been injured if he had not been aided by the statements of the patient, but having ascertained the location of the pain by the statement of the patient, he testified that he was convinced, that the muscle had been injured, by manipulating it

Dr. Dann, a physician of twenty-six years practice, was called as a witness, and testified: “ I manipulated those muscles, and examined them with my fingers. I discovered this injury from such examination. Such an injury would be likely to produce just what we found present in this case. In all my examinations, I never discovered any other malady or injury from which this man was suffering, except what I have stated. I should say he was suffering from a strain of the muscle.”

“ There was nothing further on the person of this man to indicate injury than that when the hand was placed on the abdomen any pressure caused the muscles to be tense.” He testified that he could feel the rigidity of the muscle with his fingers, and that the rigid state of the muscle indicated, to his mind, that it had received an injury.

The condition of the policy as to external evidence of an injury was inserted to protect the insurer against fraudulent claims. It is a reasonable and a proper provision, but it should have a reasonable and practical construction. The evidence of the injury must be external, objective, but it must not necessarily be visible to the eye. If it can be ascertained by applying the hand upon the exterior of the body, such a test affords equal protection to the 'assured against fraudulent claims based upon simulated injuries as evidence that can be seen with the eye. Information derived through the sense of feeling may be quite as satisfactory and convincing as that derived by sight.

The word “ visible” is defined by Webster to mean “ noticeable, apparent, open, conspicuous.” In the Century Dictionary as “ apparent, open, conspicuous: as a man with no visible means of support, discernible in sight, obvious, manifest, clear, distinct, plain, patent, unmistakable."

An object that is noticeable, apparent to the touch, may be said to be visible.

The surgeons testified that a fracture of a rib would not be visible to the eye, but could be easily ascertained by the use of the hand.

An examination of the evidence has satisfied our minds that there was sufficient evidence tending to show external and visible indications on the body of the assured of the injuries which he claimed to have sustained so that a case was made which should have been submitted to the jury.

The judgment and order appealed from should be reversed and a new trial granted, with costs to abide the event.

Dwight," P. J., and Macomber, J., concur.  