Wiest v. Insurance Co. If it appeared that the portions of the policy under consideration, when read and construed, together, were at all ambiguous or of doubtful import, we should not hesitate in the least to "blandly" resolve such ambiguity or doubt in favor of the insured. Indeed, the policy, should, if possible, be construed so as to effectuate the insurance and not to defeat it; for the indemnity is the very object and purpose of the contract, for which the insured has paid a consideration. [See Stix v. Indemnity Co., 175 Mo. App. 171, 157 S. W. 870.] But it appears that the defendant has chosen apt language to indicate that it does not agree to indemnify the insured for the loss of a hand, unless such loss shall consist in the actual physical severance of the hand at or above the wrist joint. It is by no means likely that the policy-holder so understood, or that he would knowingly have accepted the policy with such restrictive limitations upon his right to recover the indemnity for the loss of a hand or foot; but we can find the intention of the parties only from the language employed in the contract, having regard to the rules of interpretation which may be applied to contracts of this character. We cannot "blandly" construe the troublesome provision out of the contract, and disregard it altogether; for however great may be our inclination or duty to protect a policy-holder against intricate or obscure technical provisions designed for the avoidance of liability on the part of the insurer, we cannot make a contract for the parties. The stipulation in question, as we have said, follows immediately that portion of the policy providing for specific losses, in the same type in which the body of the policy is printed. Its meaning appears to be plain and unmistakable. It pointedly defines what shall constitute the "loss of a hand" so as to entitle the assured to the indemnity provided therefor. Under the circumstances it cannot well be said to consti Warnke .v. Rope Co. tute a "snare to the unwary" such as is denounced in LaForce v. Insurance Co., 43 Mo. App. 530. See, also, Stark v. Insurance Co., 176 758. Nor do we perceive plaintiff may properly be thereof. Mo. App. 574, 159 S. W. any ground upon which relieved from the effect Our conclusion is that the learned trial judge committed no error in forcing plaintiff to a nonsuit. The judgment must therefore be affirmed. It is so ordered. Reynolds, P. J., and Nortoni, J., concur. MICHAEL WARNKE, Respondent, v. A. LESCHEN & SONS ROPE COMPANY, Appellant. St. Louis Court of Appeals, December 8, 1914. 1. MASTER AND SERVANT: Injury to Minor Servant: Physical Facts. In an action for injuries to plaintiff's minor son, while in defendant's employ, caused by a steel wire springing from pliers held by the boy and striking him in the eye, while he was carrying out defendant's order to splice together the two ends of the wire, which had broken, held that the testimony given by the boy as to the manner in which he received his injury was not opposed to the physical facts, so as to require that it be rejected. 2. EVIDENCE: Physical Facts. Testimony cannot be rejected as being opposed to the physical facts unless it is plainly and palpably incompatible with physical laws or undisputed facts. 3. MASTER AND SERVANT: Injury to Minor Servant: Failure to Warn: Sufficiency of Evidence. In an action for injuries to plaintiff's minor son, while employed in winding steel wire on spools, evidence that, after a wire had caught on a defective pulley and broken, defendant's foreman ordered the boy to get the wire out and splice it, without giving him instructions or warning him of the danger, and that the boy was injured by the wire slipping from his pliers and striking him in the eye, while he was engaged in carrying out the order, held sufficient to warrant a finding that the master was negligent. 4. 5. 6. : Warnke v. Rope Co. : Instructions. In an action for injuries to plaintiff's minor son, while in defendant's employ. caused by a steel wire springing from pliers held by the boy and striking him in the eye, while he was carrying out defendant's order to splice together the two ends of the wire, which had broken by reason of being caught on a defective pulley, held that an instruction given for plaintiff, which submitted the question of defendant's negligence, although unnecessarily long and somewhat lacking in clearness, was not erroneous as being misleading or confusing. -: Instructions: Assumption of Facts. In an action for injuries to plaintiff's minor son, while in defendant's employ, caused by a steel wire springing from pliers held by the boy and striking him in the eye, while he was carrying out defendant's order to splice together the two ends of the wire, which had broken by reason of being caught on a defective pulley, held that an instruction given for plaintiff, which submitted the question of defendant's negligence, did not assume that the pulley was defective or that the wire broke, by reason of requiring the jury to "further find from the evidence that in attempting to splice the wire it sank into and caught in said defective pulley," where a former part of the instruction required the jury to find that the pulley was defective and that the wire broke as a result thereof. : : : Instructions: Conformity to Issues. In an action for injuries to plaintiff's minor son, while in defendant's employ, caused by a steel wire springing from pliers held by the boy and striking him in the eye, while he was carrying out defendant's order to splice together the two ends of the wire, which had broken by reason of being caught on a defective pulley, the petition alleged, among other things, that the pulley was "badly worn, out of repair, unfit for use, and the wire in question would sink into and catch therein, thereby causing said wire to break; and that it was dangerous to splice said wire because of the difficulty of putting such broken wire over and under said defective, out-of-repair and unfit pulley, in that said wire would sink into and catch in said badly worn, defective and unfit pulley." An instruction given for plaintiff required the jury to find that the pulley was defective and out of repair, and that, on account thereof, the wire became caught in the pulley and sank into it. Held, that, while the instruction was not entirely free from criticism, the giving of it did not constitute reversible error on the ground that it was broader than the petition, especially in view of the fact that the gravamen of the charge of negligence was. the negligence of the foreman in ordering the boy to splice the wire without giving him instructions or warning him of the danger. 7. Warnke v. Rope Co. : Sufficiency of Evidence. In an action for injuries to plaintiff's minor son, while in defendant's employ, caused by a steel wire springing from pliers held by the boy and striking him in the eye, while he was carrying out defendant's order to splice together the two ends of the wire, which had broken by reason of being caught on a defective pulley, evidence held sufficient to warrant a finding that it was not reasonably safe for defendant's foreman to order the boy to undertake to splice the wire, under the circumstances, and to warrant a finding that the boy needed instruction in splicing the wire, and that he applied to the foreman for such instruction, but received none. 8. DAMAGES: Instructions: Allowing Excessive Recovery: Harmless Error. In an action for personal injuries, the instruction on the measure of damages was not prejudicially erroneous, by reason of the fact that it authorized the jury to allow damages for certain items up to a certain amount (not exceeding the amount claimed therefor in the petition), which amounts were greater, by $4.60, than the amounts shown by the evidence, since it will not be assumed that the jury disregarded the evidence and found the full amount authorized by the instruction. 9. : H In an action for injuries to plaintiff's minor son, the instruction on the measure of damages was not prejudicially erroneous for authorizing the jury to award damages for future loss of earnings, in the absence of any evidence tending to show that such loss would be sustained, where the verdict was for less than the loss of earnings shown to have accrued up to the time of the trial, in view of sections 1850 and 2082, R. S. 1909, requiring the appellate court to disregard errors not affecting the substantial rights of the parties. Appeal from St. Louis City Circuit Court.-Hon J. Hugo Grimm, Judge. AFFIRMED. Watts, Gentry & Lee for appellant. (1) The court erred in overruling the demurrers to the evidence, because the plaintiff's son's own story shows that it was physically impossible for him to have been injured in the manner in which he claims. Where the testimony offered by plaintiff and relied upon by Warnke v. Rope Co. him to make out his case utterly at variance with physical facts, it is the duty of the court to give a peremptory instruction for the defendant. Artz v. Railroad, 34 Iowa 159; Maryland v. Railroad, 16 Atl. Rep. 623; Meyers v. Railroad, 24 Atl. Rep. 747; Carroll v. Railroad, 12 Wkly. Notes Cas. 348; Kelsay v. Railroad, 129 Mo. 374; Nugent v. Milling Co., 131 Mo. 252; Weltmer v. Bishop, 171 Mo. 116; New v. Railroad, 114 Mo. App. 385; Gurley v. Railroad, 104 Mo. 233; Scroggins v. Railroad, 138 Mo. App. 220; Schaub v. Railroad, 133 Mo. App. 444; Blumenthal v. Railroad, 97 Maine 255; McKinley v. Street Rd., 86 N. Y. Supp. 461; Payne v. Railroad, 136 Mo. 575. (2) The court gave erroneous instructions: Instruction number 1 given for the plaintiff is erroneous. The instruction covers nearly two pages of printed matter, is drawn in a loose, rambling fashion, does not clearly define the issues, and is very misleading. This instruction assumes that the pulley in question was defective and out of repair, and also assumes that the wire broke. These were controverted questions, and it was error to assume the truth of them. Minnier v. Railroad, 167 Mo. 99; Blasland, etc., Co. v. Hilig, 70 Mo. App. 301; Orscheln v. Scott, 79 Mo. App. 534; Hull v. St. Louis, 138 Mo. 617; Fullerton v. Fordyce, 121 Mo. 1; Linn v. Massilon Bridge Co., 78 Mo. App. 11. The petition limited the defective condition of the pulley by specific allegations as to how it was defective, and the only evidence of any defective condition was that of plaintiff's son, to the effect that a deep, narrow notch was worn in the surface of the pulley. But this instruction does not limit the consideration of the jury to any particular defect, but permits them to find that it was defective in any way. It is error to give an instruction that thus broadens the issues. It should have limited the defect to the specific conditions which the evidence tended to prove. Casey v. Bridge Co., 114 Mo. App. 186MoApp |