
    Harry Sneck, Resp’t, v. The Travelers’ Insurance Company of Hartford, Connecticut, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed November 13, 1894.)
    
    Insurance—Accident—Loss op hand.
    The loss of all the fingers on one hand is not a loss of an “entire hand,” within the meaning of an accident policy.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court.
    
      Salterlee & Taylor, for app’lt; Howard W. Snech, for resp’t.
   Dwight, J.

The defendant insured the plaintiff, in the sum of $10 a week, against loss of time, not exceeding 26 weeks, resulting from bodily injuries received in a manner described, and producing a degree of disability particularly defined, and further, by its policy, undertook that, if loss, by severance, of one entire hand or foot should result from such injuries alone, within 90 days it would pay him one-third of the principal sum of $2,000, named, in the policy, in lieu of such weekly indemnity. By this action, the plaintiff sought to recover under the second alternative of the above provision, and he was permitted to do so, on the theory that he had suffered “ the loss, by severance, of one entire hand.” An exception taken by the defendant to the charge of the court raises the question whether that theory was supported by the evidence in the case, and the motion for a new trial was made on the ground that the verdict of the jury in that-respect was contrary to th.e evidence. The evidence is undisputed. ■ The plaintiff’s hand-was caught in the knives of a planing machine, and was cut off three-fourths of an inch back of the knuckle joints, and just back of the head of the second bone of the thumb. Anatomically the severance was of the phalanges and the heads of the metacarpal bones, leaving the palm of the hand covering the carpal and metacarpal bones, except the heads of the latter, and the middle bone of the thumb, except its head. He retained the joint at the wrist unimpaired, with all the motions it ever had, in all directions. The surgeon who made the amputation, and who was called by the plaintiff, testified: “ The fingers and the heads of all the metacarpal bones were cut off with a planer. * * * A little over half the hand, speaking anatomically, is gone. There are twenty-seven bones in the skeleton of the hand. Thirteen bones are entirely gone, and parts of five more. The parts of the five are simply the heads of the metacarpal bones and [the head of] the middle bone of the thumb.”

The same surgeon testified that the portion of the hand which remains is more useful than if the amputation had been at the wrist; and he illustrated the statement by saying that the plaintiff might use it in pitching hay, grasping the handle of the fork with his right hand, and lifting with his left. The plaintiff himself testifies that his left hand is of considerable use to him. There is no evidence to the contrary of that above given. Upon this evidence, it was, we think, manifest error to submit to the jury the question whether the plaintiff had sustained the loss, by severance, of an entire hand. The loss which he sustained was unquestionably by severance, but it was not of the entire hand. He lost all of his fingers, but he retained part of his thumb, and nearly the whole of the palm of the hand. There seems to be no room for construction of the language of the contract. To bring the case within the provision in question, the loss must be of the entire hand. Of course, this means substantially the entire hand, both in respect to its structure and its use. In this case, upon the undisputed evidence, there was not such a loss in either respect. Structurally, nearly half his hand was saved to the plaintiff: and the testimony both of himself and his surgeon is to the effect that what he retains is of appreciable and substantial use. The argument does not seem to admit of elaboration, nor the citation of authorities. The case stands upon the unequivocal language of the contract and the undisputed evidence as to the extent of the injury. We think the judgment ánd order appealed from must be reversed, and a new trial granted.

All concur, except Bradley, J., dissenting.

So ordered, with costs to abide the event.

Bradley, J.

(dissenting).—The plaintiff was operating a planer when his left hand was severed. The leading question upon the trial was whether the injury suffered by him was loss, by severance, of the entire hand within the meaning of the policy, • because upon the determination of that fact in the affirmative was dependent the plaintiff’s right to recover anything other than a weekly allowance. The description given by the plaintiff of the injury is that his hand was “ cut off from three-quarters of an inch to an inch back of the knuckle joint, and the thumb just back of the head of the bone of the first joint; ” and the portion remaining of the hand was shown to the jury. The description of it as given by the evidence of a surgeon is that the fingers and the heads of all the metacarpal bones were, cut off. The thumb had been pressed back, and the bone cut off obliquely; and he added that a little over half the hand, speaking anatomically, is' gone; that there are 27 bones in a complete hand; 13 of them are entirely gone from the plaintiff’s hand, and parts off 5 more; and that the parts gone of the five are the heads of the metacarpal bones and the middle bone of the thumb. These metacarpal bones are those which 'connect the carpus or wrist with the phalanges or fingers, and constitute what is termed the “ metacarpus,” as the doctor expresses it. He says that the hand commences at the termination of the forearm, and includes the wrist joint. If the removal of the entire hand is essential to the' “loss, )by severance, of one entire hand,” within the meaning of the provisions of the policy, the plaintiff’s recovery cannot be sustained; but it would seem more reasonable in its import to so construe the provision as to confine the application of it to the effect of the loss produced by the severance. Thus interpreted, the right of such indemnity would be given by the defendant’s policy when, by the severance of the hand or foot, the use of it as such is entirely lost

Somewhat analogous is the case of Sheanon v. Ins. Co., 77 Wis. 618, where the question related to the provision of a policy that the company would pay if the insured 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.” The court held that the loss by the assured of the use of his feet from accidental cause came within such provision of the policy, and that paralysis of his lower limbs, caused by his being shot in the back, entitled him to recover as for loss of his feet. No defined manner of the loss of the members was made requisite to relief under that policy. Although it is otherwise in the present case, the requirement of physical severence has relation only to the manner in which the injury must be produced, to bring the case within the provisions of the policy for the greater indemnity; and the loss covered by it does not necessarily depend upon the extent of the amputation, but upon the effect of the severance upon the use of the member, and the effect must be the entire loss of the use of it. The view taken is that a construction more favorable than this to the defendant is not required by the terms of the policy; that is the sense in which it is reasonable to suppose it was intended and understood, and such is the interpretation to which it is fairly entitled. Hoffman v. Ætna Ins. Co., 32 N. Y. 405; Herrman v. Merchants’ Ins. Co., 81 id. 184; Darrow v. Family Fund Society, 116 id. 537; 27 St. Rep. 474. This was the view taken by the trial court; and the question whether the plaintiff’s loss by the severance of his hand was the entire use of it was submitted to the jury, with instructions that, if they found that it was not so, the plaintiff was not entitled to recover any portion of the principal sum mentioned in the policy. On the • subject of the effect of the severance of the hand upon the use of what remained of it, evidence was given tending to prove, and it must be assumed, that it was more useful for certain purposes than would have been the condition produced if it had been taken off at the wrist joint; that it could be placed under bodies, and thus used in raising them; and that it could be used to bear upon bodies to steady them while he is lifting them with the other hand; but that he cannot grasp anything with it. Whether it would have given him greater inconvenience, and been less useful, if none of it had remained, is not necessarily the question; but the inquiry is, whether the loss of it as a hand, for its purposes as such, was entire. There remained neither fingers, thumb nor knuckles. The evidence warranted the conclusion that, for the practical purposes to which the use of a hand is adapted, there was an entire loss of the use of it, and the question was properly submitted to the jury.

For these reasons, not adopting the views of a majority of the court, I think the judgment and order should be affirmed.  