Routt v. Brotherhood of Railroad Trainmen. and the stiffened wrist joint were still of some utility to the plaintiff. It was a case very like this. Color-blindness is a loss of the sight and an inability to see certain colors. In the case cited a part of the hand had clearly been left. There was a thumb and a finger. This brings us to the question whether it was the use of the hand that was meant, or its actual loss. This court held it was the use. In the body of the opinion it is said: "What did the defendant company contract to insure against under the provisions of this by-law? Was it the severance of the entire hand at or above the wrist joint, or was it the entire loss of the use of the hand? If the only risk assumed by defendant was the amputation of the whole hand, then the learned trial court was fully justified in directing a verdict for defendant; but, if a fair and liberal interpretation of the contract most favorable to the insured can make it a risk which includes the total loss of the use of the hand by severance, then the question as to whether such loss is established by the evidence is properly one for the triers of such facts. If the officers of the society, who prepared the by-law in which the contract is set forth, have used ambiguous terms, the ambiguities must be interpreted in the manner most favorable to the insured." In Lord v. American Mutual Accident Ass'n, 89 Wis. 19, there was a policy containing a provision for the payment if the injury caused an "immediate, continuous, and total disability." In that case it was held that it was a proper question for the jury to determine whether a total loss of three fingers and part of another on the same hand, and the destruction of the joint of the thumb, and a cutting of the hand, constituted a total loss within the meaning of such provision. The court said: "It is contended that there is no such thing as the loss of the hand unless the injury is such as to require the amputation of the hand above the wrist. That would be too much of a refinement upon language for practical purposes. The hand was for use; and, if it was injured Routt v. Brotherhood of Railroad Trainmen. so as to become useless as a hand, then the defendant became liable for its loss under the contract." There The In Sneck v. Travelers Ins. Co., 88 Hun. (N. Y.) 94, 34 N. Y. Supp. 545, the action was on a policy against a "loss by severance of one entire hand or foot." was a loss of a part of the hand by severance. plaintiff testified that he had no use of the hand. The court held that the word "severance" in the policy meant the method by which the accident occurred, and that it was the loss of the use of the hand that was insured against, and that the question as to whether the loss was total under the evidence was one of fact for the jury. The same case was reviewed by the court of appeals in 156 N. Y. 669, and the last majority opinion of the intermediate court was approved without division. Applying the principle declared in the above cases, complete and permanent loss of the sight of both eyes means loss of the use of the eyesight of both eyes for the purposes of the insured's avocation. Moore v. Etna Life Ins. Co., 75 Or. 47; Theorell v. Supreme Court of Honor, 115 Ill. App. 313; Supreme Court of Honor v. Turner, 99 Ill. App. 310; Sheanon v. Pacific Mutual Life Ins. Co., 77 Wis. 618; International Travelers Ass'n v. Rogers, 163 S. W. (Tex. Civ. App.) 421. The plaintiff sought indemnity because of the anticipated loss of the sight of his eyes. That part of section 38 which relates to loss of the eyes reads: "Or who shall suffer the complete and permanent loss of sight of both eyes." The condition is not made that the eyes of the insured shall be taken out of their sockets and away from his physical body, but only that he "shall suffer the complete and permanent loss of sight of both eyes." It does not say that he shall become blind in both eyes so as to become unable to see objects of any kind, but that he shall lose "the sight of both eyes." This he did when he became color-blind. He lost his sight in both eyes. It affected both eyes alike. Besides, the color blindness was "complete and permanent." He could not see, and that applied to both eyes, and he Routt v. Brotherhood of Railroad Trainmen. was discharged because the defect in his vision made him unfit for railroad service. The thing for which he sought indemnity, loss of his vision, came to him. If his insurance does not indemnify him, it serves no good purpose. Besides, it is ambiguous and misleading and should be construed as the defendant knew the plaintiff would understand it. A fraternal insurance association of railroad trainmen established and maintained with special reference to furnishing insurance for the benefit of those who are injured by sickness or accident during the time of their employment in the railroad service, and who are thereby disqualified from following their avocation as trainmen, will be deemed to have intended the benefits promised by its insurance certificate, its constitution, by-laws and rules, and, in case of ambiguity in the language used, it will be construed in such a way as to accomplish the purpose intended, whenever the same may be done without violence to the expressed terms of the contract, and in accordance with the aims and purposes of such fraternal brotherhood. Where the peculiar malady known as "color-blindness" so impairs the sight that the member of such association who is insured therein is disabled and is unable longer to continue in the train service, and is discharged therefrom on account of such defect in his vision, it will be held that he is entitled to the benefits provided by the certificate, the constitution, and by-laws and rules of the society. In such case, while the sight of the insured may not be entirely destroyed for some purposes, it will be deemed destroyed and lost as to the particular avocation of a railroad trainman, and he will be held entitled to recover upon the benefit certificate which he holds. We are unable to say that the judgment of the district court is wrong. It appears to be right, and it is AFFIRMED. 101 Neb. 49, Routt v. Brotherhood of Railroad Trainmen. LETTON, ROSE and CORNISH, JJ., dissenting. * Insurance contracts which are ambiguous should be construed against the insurer, who usually prepares the contract; but there is no ambiguity in the contract under consideration. The clause under which the plaintiff claims recovery provides: "Any beneficiary member in good standing who shall suffer the complete and permanent loss of sight of both eyes shall be considered totally and permanently disabled, and shall thereby be entitled to receive, upon furnishing sufficient and satisfactory proofs of such total and permanent disability, the full amount of his beneficiary certificate, but not otherwise." The plaintiff's eyes became affected in some way so that he was unable to distinguish colors, a condition known as "color-blindness." In all other respects his vision seems to have been perfect. He was 27 years old and had never worn glasses, nor had the doctors recommended them. The colors he could not distinguish were red and green. He had no trouble distinguishing white and blue, and had some trouble in distinguishing yellow. He had no trouble in reading print or seeing ordinary objects. To hold that "color-blindness" is equivalent to "complete and permanent loss of sight of both eyes" is to state a contradiction in terms. The contract was not to indemnify against the loss of the use of the eyes in his employment as a railroad brakeman as the majority opinion practically holds. It seems to be a distortion of its language to so hold. To insure a person's ability to permanently continue in his particular vocation would, in a policy, require words to that effect. In the policy under consideration there is none. The opinion is unjust to the membership. The judg ment affirmed diverts from a trust fund, created by the contributions of members as indemnity for the "complete and permanent loss of sight of both eyes" and for other purposes of indemnity, the sum of $1,740. We cannot conceive that any body of men, providing for insurance, Greiner v. Lincoln. whether they all belong to one occupation or not, or whatever the occupation, would place a man who had merely become color-blind on the same indemnity footing with the family of the brother who had been killed, or with the brother totally disabled through loss of legs or arms, or total blindness. Loss of his job by a young trainman, because of color-blindness, might be the incident that led to his financial fortune, taking him from a job that paid from $75 to $150 and putting him into an occupation that paid several times that. Certainly colorblindness bears no resemblance to total disability. Presumptively insurance aims at indemnification-compensation according to actual loss. The cases cited in the opinion go only to the length of holding that, when a policy provides for the "loss" of an organ, liability arises when there is an entire loss of the use of the organ for all practical purposes. FRED GREINER ET AL., RECEIVERS, APPELLANTS, V. ROSE B. LINCOLN ET AL., APPELLEES. FILED NOVEMBER 3, 1917. No. 19692. "Upon appeal in actions in 1. Appeal in Equity: TRIAL DE NOVO. equity, this court is required by the statute to try the issues de novo, without reference to findings of the trial court; but, when the testimony of witnesses orally examined before the court upon the vital issues in the case is conflicting, so that it would be impossible that both versions of the transaction can be true, this court will consider the fact that the trial court observed the witnesses and their manner of testifying, and must have accepted one version of the facts rather than the opposite." Shafer v. Beatrice State Bank, 99 Neb. 317. 2. Evidence examined, and held to support the finding and judgment of the district court. APPEAL from the district court for Lancaster county: P. JAMES COSGRAVE, JUDGE. Affirmed. Harry R. Ankeny, for appellants. Reese, Reese & Stout, contra. |