
    Harry Sneck, App’lt, v. Travelers’ Insurance Company of Hartford, Connecticut, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 21, 1895.)
    
    Insurance — Accident—Construction.
    A provision, in an accident insurance policy, to indemnify the insured against “ loss by severance of one entire hand,” has reference not alone to-an injury which involves the loss or requires the amputation of the “entire hand,” in a strictly anatomical sense, but the effect, as well as the extent, of the loss by severence is to be considered in determining whether, within the terms of the contract, the “entire hand” is gone.
    Appeal from a judgment, entered qn a verdict directed by the court in favor of plaintiff.
    
      Howard W. Sneck, for app’lt; Satterlee, Yeoman & Taylor, for resp’t.
   Werner, J.

— This action was brought upon a policy of insurance issued by the defendant to the plaintiff, by the terms of which the latter was to receive a weekly idemnity of $10 per week, for a period not exceeding twenty-six weeks, for bodily injuries producing disabilities, and respiting from causes enumerated in the policy. It was further provided in said policy that, “ if loss by severance of one entire hand or foot” should result from such injuries alone, the insured should, within ninety days, be entitled to-receive one-third of the principal sum of $2,000, named in the policy, in lieu of such weekly indemnity, The plaintiff claims under this latter condition of the policy, and upon the first trial of this action he was permitted to recover upon the theory that he had suffered “the loss by severance of one entire hand.” Upon appeal by the defendant to the court the judgment entered at circuit was reversed, and a new trial ordered. The case was retried at the Monroe circuit held in January, 1895, and at the close of plaintiff’s case, and upon defendant’s motion, a verdict was directed in favor of the plaintiff for $110, that being the wqelcly indemnity provided for in the policy at the.-rgte of $10 per week for eleven weeks. The injury complained of was conceded)y due to-the accidental causes enumerated, ip the policy. The evidence upon the last trial as to the nature of the injury, so far as it relates to the anatomical structure of the hand, and the extent tp which imputation wag made, is substantially the, same as it was upon the former trial. There is a marked difference, however, in the evidence given to show the degree of disability, or extent of the loss of use of the hand, resulting from the injury and amputation. Upon the former trial the plaintiff gave evidence which tended to show that he had considerable use of the portion of the hand which was left; and plaintiff’s surgeon testified: “The fingers, and 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 gone entirely, and parts of five more, and the parts of the five are simply the heads of the metacarpal bones and the head of the middle bone of the thumb.” He further testified,. in substance, that the portion of the hand which remains is more useful than if the amputation had been at the wrist, and that it could be used for certain purposes. Upon the last trial the plaintiff testified substantially that he had no use of the injured member as a hand, and never had since the accident, although admitting that upon the former trial he had probably testified that he could use it to place under and against objects for the purpose of lifting and pushing. He now attempts to explain these admissions as follows: “But I don’t mean exactly the hand. I mean the whole arm. I don’t use the hand. I use the arm. I don’t mean the portion I exhibited to the jury. I mean that arm, not the hand.” The physician who was called by the plaintiff upon the last trial, in speaking of the condition of this hand, gave substantially the same anatomical description of its condition as was given upon the former trial. But in speaking of its use he testifies: “Nothing could be done with it; none of that for which the phalanges were used ; nothing can be grasped with it, — what remains of that hand; absolutely nothing. * * * He has no use of the hand." These summarized extracts from the testimony taken upon both trials will suffice to show that, so far as the opinion of this court upon the former appeal was based upon evidence showing the extent to to which plaintiff had lost the use .of the injured hand, it is not controlling here. That the prevailing opinion upon that appeal did not rest entirely upon the terms of construction of the contract, but was predicated to some extent upon evidence showing the use to which the injured hand could be put, is clearly evident from the .context thereof.

It seems, our duty, therefore, to consider the case upon the evidence now presented, and to apply thereto the principles which control contracts of this character. It may be conceded, for the purpose of this discussion, that, if the language of this policy is to be construed in its strictest and most literal sense, then plaintiff’s claim to compensation for “loss by severance of one entire hand” cannot be sustained, and the disposition of the case made by the trial court must be upheld. If, on the contrary, we are to give effect to the contract according to the ordinary and fair meaning of the terms employed, then we must consider the question whether the evidence was such that it became the duty of the trial court to prevent plaiptiiFs recovery upon this claim by directing a verdict for the weekly indemnity provided for in another clause of the policy. Let us, then, briefly consider the rules of interpretation which must be applied to this, contract. “Words in a policy must be taken in their ordinary sense as commonly used and understood; and, if the sense in which they are used is uncertain, as they are found in a contract prepare^ and executed by the insurer, they should be construed most favorably to the insured.” Herrman v. Insurance Co., 81 N. Y. 184. “The character and purpose of the contract must be considered, and, if there is any doubt as to the true meaning of any of its terms, it must be interpreted in the sensp in which the insured had reason to suppose it was understood." Hoffman v. Insurance Co, 32 N. Y. 413. In Darrow v. Family Fund Society, 116 id. 537; 27 St. Rep, 474, the court states the rule in the following-language: “For the purpose of upholding a contract of insurance, its provisions will be strictly construed as against the insurer. When its terms, permit' more than one construction, that will be adopted” which supports its validity. It is only when no other is permissible by the language used that a construction which works a forfeiture will be given to it.” Looking at this contract in the light of- these rules, 'we think; it is not unreasonable to hold that the understanding to indemnify the insured against “loss by severance of one entire hand” has reference not- alone to an injury whicbinvolves the loss or requires the amputation of the “entire hand” in a strictly anatomical -sense, but that the effect,- as well as the extent, of the loss'by severance is to be considered in determining whether, within the terms of the contract, the “entire hand”-is gone. To require the insured to submit to'a strictly literal interpretation of the contract prepared for him by the insurer, without regard to the. purpose of - the contract or the understanding thereof by the parties, would be to 'hold that only in case of the severance of the entire hand in a most accurately anatomical or technical sense could the insured recover'under this clause of the policy. We do' not believe that such a conclusion is required in the present, case. The term “entire hand” is to be taken in its general acceptation and ordinary meaning.-' In construing this contract the law does not require, an injury which comes within a strictly accurate and technical definition of the words employed, but one which reasonably,- fairly, and practieálly comes within thé meaning of the terms employed in their general and usual meaning and acceptation. In a.contract of insurance providing for ihdémnity for the loss' óf á limb the’ compensation to ‘‘be paid is not merely for the physical pain of its amputation, but principally.’for the deprivation of ¡its use as a member of the body. It would seem-to bean extremely narrow' and technical construction of this contract to-say that only a physical "removal of every particle of "that portion of the’hupan anatomy known as' the hand would entitle the insured .to"recover under the'clause of the policy now., under consideration.- Is-it not-more reasonable and logical to conclude that in the úse of the 'language abóvé Inferred to the “entire hand” as a part of the, human structure is considered' in connection with the use to which it is adapted, -and" the injúry which the loss of such use would entail? Is it hot also fair toassume that this was regarded by the parties as thé sénsein which the' contract was.to.be’..understood,. and was( one of ‘the considerations which influenced'.the insured to enter'into the contract ?An affirmative answer to these questions brings' into harmony thé language and the intent of the parties to the contract, élimiriatés from the case any seeming, difficulty arising' from purely'technical definitions, ana brings it fairly within the rifle of Sheanon v. Insurance Co., 77 Wis. 618, which. is in some'respects similar to-this case. The'condition of the.policy in that case was, that ‘the" company should pay if the insured should /‘suffer, the loss' óf 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. plaintiff suffered paralysis of the lower limbs,1 caused by being shot,in the back. The court held that the loss of the use of his feet from this accidental cause was within the provision of the policy which entitled him to recover. The difference between that case and this is that here the policy provides that the loss must be occasioned by severance,” while in that case there was no specification as to to the manner of the loss, except that it must be accidental. But we think this specification in the policy before us is intended to refer to the manner, rather than to the exact physical extent, of the injury.

The foregoing propositions necessarily involve as a logical sequence the inquiry whether the evidence upon the trial was of such a character that the court was right in holding that plaintiff had not suffered the loss “ by severance of one entire hand,” and therefore was not entitled to recover under this clause of the policy. We think the learned trial court erred in assuming this to be its duty. If our reasoning is sound, the effect, as well as the extent, of the amputation was a proper subject for consideration at the trial. The evidence — which was not the same as upon the ■ former trial —was such that under the rules here applied different views might be entertained upon the question whether the plaintiff had suffered the loss of an entire hand. To the minds of some men it would warrant the conclusion that for the practical purposes to which the use of the hand is adapted there was an entire loss of the use of it; while to others it might seem, after an inspection of the hand, and a consideration of the evidence, that neither in its anatomical construction nor in its practical use'as a hand was it entirely destroyed. Unless the evidence settled this question beyond dispute, it was the province of the jury to decide it under proper instructions from the court as to the legal principles which govern the construction and effect of such contracts. We think this course should have been pursued; and are therefore constrained to reverse the judgment appealed from, and grant a new trial, with costs to abide the event.

So ordered.

Ward, J., concurs. Bradley, J., not voting. Lewis, J., dissenting.  