Bolich v. Provident Life & Accident Insurance

CoNNOR, J. There was evidence at the trial of this action tending to show that plaintiff sustained a bodily injury which was effected solely by the happening of a purely accidental event resulting from the explosion of an automobile, and that plaintiff gave notice to the defendant of his claim under the policy of insurance sued on as soon as was reasonably possible. For this reason there was no error in the refusal of the court to allow the motion of the defendant, at the close of all the evidence, that the action be dismissed by judgment as of nonsuit. The accident did not happen until the mechanic stepped on the starter. There was then a terrible combustion in the motor, followed by the sudden emission of water from the radiator, which struck the plaintiff in the face, about the eyes, and caused his bodily injury. This injury resulted in loss to the plaintiff, for which the defendant by the express language of its policy agreed to indemnify the plaintiff. With respect to the first issue submitted to the jury, the court charged as follows: “The court further instructs you that if you find by the greater weight of the evidence that the gasoline sent to the cylinder of the car for the purpose of exploding and causing the pistons to go up and down as the ease may have been in the regular operation of the car, exploded and instead of causing the pistons to perform their natural and proper functions which were necessary and sufficient to run the motor of the automobile in question, but started an explosion by force, causing .the liberation of warm or hot water from its environment, that would constitute an explosion of the automobile, and if the plaintiff was injured as a direct result of such an explosion, and has so satisfied you by the greater weight of the evidence, you would answer the first issue, ‘Yes.’ If the plaintiff has failed to do so, you would answer the first issue ‘No.’ ” The defendant’s exception to this instruction cannot be sustained. The word “explosion” is variously used, and is not one that admits of exact definition, having no fixed or definite meaning, either in ordinary speech or in the law. 25 O. J., 178. It implies, however, a sudden expansion of a liquid substance, with the result that the gas generated by the expansion escapes with violence, usually causing a loud noise. The word as used in a policy of insurance should be construed in its popular sense, as used by ordinary men, and not in a scientific sense as used by scientific men. There was evidence at the trial of this action which tended to show that the hot water which struck the plaintiff in *47 tbe face, and injured bis eyes, was forced out of tbe radiator by an explosión in tbe automobile. With respect to tbe second issue, tbe court charged tbe jury as follows: “Tbe court instructs you that tbe loss of an eye within tbe meaning of tbe policy of insurance means tbe entire loss for tbe practical use thereof, and tbe court instructs you that if tbe entire sight of tbe eye is not completely destroyed but that what sight is left is of no practical use or benefit and that this condition will continue throughout tbe life of tbe plaintiff, then tbe plaintiff within tbe meaning of said policy has sustained tbe loss of an eye. ‘Practical,’ gentlemen, as used in this definition means ‘capable of being used,’ that is usable and valuable in practice, capable of being turned to use by tbe plaintiff. “If tbe plaintiff has satisfied you by tbe greater weight or tbe preponderance of tbe, evidence that said explosion and injury caused tbe irrecoverable loss of tbe sight of plaintiff’s right eye as defined to you by tbe court, within thirty days after said accident, you would answer tbe second issue, ‘Yes.’ If tbe plaintiff has failed to so satisfy you and you find that there is a practical use, if his eye is capable of being-turned to practical use, you would answer the second issue, ‘No.’ ” The defendant’s exception to this instruction must be sustained. The liability of the defendant under the policy sued on is expressly limited by language which is free from uncertainty and ambiguity. This liability cannot be enlarged by construction. It is expressly provided in the policy which the plaintiff accepted and on which he brings this action, that the loss of an eye, for which the defendant shall be liable under the policy, means the irrecoverable loss of the entire sight thereof. It was error for the court to enlarge this liability by its instruction that the loss of an eye means tbe entire loss for practical purposes. There was no evidence tending- to sbow tbat tbe bodily injuries sustained by tbe plaintiff resulted in tbe loss of an eye which resulted in the irrecoverable loss of the entire sight thereof. For this error the defendant is entitled to a new trial, of the second, third and fourth issues. Although the defendant may not be liable to the plaintiff under the policy for the loss of an eye, there was evidence tending to show that the defendant is liable to the plaintiff under the policy for the loss- of time, and for medical and hospital expenses. If on the new trial, the jury shall answer the second issue “No,” this evidence should be submitted to the jury under proper instruction. New trial.