Columbian Mut. Life Assur. Society v. Penn

Cook, J., delivered the opinion of the court. Appellee, as plaintiff in the court below, filed his declaration in the circuit court of Lincoln county against appellant to recover the sum of two hundred and fifty dollars alleged to be due under two beneficiary covenants which the appellee held in the appellant society, claiming that the appellee had suffered a complete fracture of his left arm, and by reason thereof he had the right to recover under certain provisions of the covenants. The provision of covenant No. 2966 under which recovery is sought reads as follows: “Upon receipt of satisfactory proofs, including an X-ray photograph, indicating a- complete fracture of arm at or above the wrist, or leg at or above the ankle, the society will pay one-twentieth of the value of this covenant, provided, however, that in no event will a second payment be made for the breaking of the same limb or limbs.” The clause in covenant No. 63245 upon which the decla- - ration is based reads: “In the event of complete fracture of arin at or above the wrist, or the complete fracture of leg at or above the ankle, this guest shall receive immediately, upon acceptance of proof of such disability, one hundred dollars, but in no event shall more than one hundred dollars be paid for any such temporary disability.” To the declaration the appellant pleaded the general issue with notice thereunder of special matter of defense. The pleas set forth in detail that the appellee did not suffer a complete fracture of the arm within the terms of the policy, and that there was no liability whatever, and also set forth in great detail other defensive matter which. [274] under our view of this case, it will not be necessary to notice in this .opinion. The cause was tried upon the issues and proof, and resulted in a verdict for the plaintiff, from which this appeal was prosecuted. There is no contention that both bones of appellee’s forearm were broken, and there is no evidence that the ulna was injured at all, but the proof offered by the appel-lee was to the effect that there was a complete fracture of the bone known as the radius, and the first question that arises on this récord is whether a fracture of one bone of the forearm is a complete fracture of the arm within the meaning of the provisions of the two covenants as here-inbefore set out- in full. The provisions of the policy contracts upon Avhich this suit is solely based provide a benefit for a complete fracture of the arm at or above the wrist, and we are of -the opinion that a fracture of one of the bones of the forearm is not a complete fractcre of the arm within these provisions of the contracts. The word “fracture” connotes the breaking of a hard substance, and to have a complete fracture of the arm it is necessary that there be a complete break of all the bony substances in the arm, and, since there are two bones in the forearm, the radius and ulna, there can be no complete fracture of the forearm unless there is a break of both bones. The correctness of this view is indicated by the fact that section 400 of the Constitution of the society provides a benefit to be paid to the holder of a beneficiary covenant for the complete fracture of one or both bones of the forearm, the amount of this benefit being different from that provided in one of the covenants sued on. At the tidal this section of the constitution of the society was introduced in evidence, and it reads, in part, as follows: “Should the holder of a beneficiary covenant providing a benefit of this character, while in good standing, suffer the complete fracture of the arm (humerus) at either extremity, or the shaft; or the complete fracture of one or both bones of the forearm (radius or ulna) either at extremities or shaft, . . . there shall be paid one hundred dollars immediately upon acceptance of proofs,” etc. [275] The appellee contends that he is entitled to recover not only by reason of the provisions of the covenants which are made the basis of his suit, but also because of the provisions of said section 400 of the constitution of the society. It is a sufficient answer to this contention, however, to say that in the declaration which is the basis of this suit the appellee’s right of recovery is predicated solely upon the provisions of the policy contracts. The declaration contained no reference to this constitutional provision, and certain it is that it did not seek to charge liability under the terms of this provision, and consequently no recovery in this suit can be upheld in virtue of this constitutional provision. As to whether a new suit predicating liability upon this provision can be maintained we express no opinion. It follows from the views herein expressed that the peremptory instruction requested by the defendant should have been granted, and therefore the judgment of the court below will be reversed, and judgment entered here' for defendant. Reversed, and judgment for defendant. Reversed.