Southern Woodmen v. Morris

70 So. 952, 14 Ala. App. 464, 1916 Ala. App. LEXIS 58

Opinion

BROWN, J.

This action is on a benefit certificate issued by the defendant to the plaintiff as “Royal Guest,” in which it covenants and agrees, in consideration of the payment of a fixed premium at specified times, to pay to the wife of said Royal Guest, upon proof of his death, the accumulated benefits, the amount of which depends upon the age of the policy or certificate, and, in case of total and permanent disability, to pay to the Royal Guest a specified sum, and so on, including the loss of a certain member of the body, and, also: “In event of a broken arm or broken leg at any time while in good standing, this guest shall receive two hundred dollars.”

This suit is predicated on the quoted clause, and the fact that the plaintiff was in good standing at the time of the alleged injury is not questioned.

The evidence on the part of the plaintiff tends to show that on the 4th day of March, 1913, while engaged in and about his work, he fell and his arm was broken; while that offered by the defendant tends to show that the arm was not broken. Both parties had an X-ray “shadowgraph” made, which were offered in evidence, and the evidence tends to show that the shadowgraph made at plaintiff’s instance indicated a break or fracture. These shadowgraphs are not attached to the record.

(1, 2) The question, “Did you give notice to the company of this injury you received?” merely elicits evidence of the fact of such notice being given, and not the contents of such notice, and the ruling of the court was free from error.' The only notice provided for in the contract is in case of death or permanent and total disability; and the claim in suit not being predicated on either of the clauses providing against such contingency, it was not incumbent on the insured to give notice, unless such notice was required by the by-laws of the order, and this is not made to appear in this record.

(3) It is a familiar rule that contracts of insurance are liberally construed in favor of the insured, and words not having a fixed technical meaning will be given the meaning accorded them in ordinary and common use. One definition of the word “broken,” given by the Standard Dictionary, is: “1. Separated forcibly into parts; fractured; shattered; ruptured; as broken reeds; a broken limb; broken skin; broken waves.”

The contract does not undertake to define the terms “broken arm or broken leg” as used therein, and we hold that a fracture such as some of the evidence tends to show the plaintiff suffered in his arm is covered by the contract.—Peterson v. Modern Brotherhood of America, 125 Iowa, 562, 101 N. W. 289, 67 L. R. A. 631.

(4) The charges refused to defendant and made the basis of the assignments of error were properly refused. The contract not requiring the plaintiff to give the notice, the obligation to pay was fixed at the very moment the arm was broken. There was evidence tending to show notice and a refusal to pay, and appellant has no ground to complain at the oral charge of the court, and the exception thereto was without merit.

This disposes of all the assignments of error. The judgment is affirmed.

Affirmed.

Pelham, P. J., not sitting, being related to one of the parties.