(220 S. W.)

BRADLEY, J. This is a suit upon a limited accident insurance policy for $3,000. Plaintiff is the widow of the insured and beneficiary in the policy. The cause was filed in Johnson county, from which the venue was changed to Cedar county, and there tried before the court and a jury. The verdict and judgment were for plaintiff for the face of the policy, with interest, and for $500 for attorney's fees for vexatious refusal to pay. From this judgment defendant appealed.

M. D. Aber, of Warrensburg, for appellant. | hand, makes the opposite contention. A conWalter L. Chaney and S. J. Caudle, both tract of insurance does not differ from other of Warrensburg, and W. E. Owen, of Clinton, contracts respecting rules of interpretation. for respondent. The object in interpretation and construction is to ascertain the meaning and intention of the parties, and this will be reached by a consideration of the whole instrument. Brewing Co. v. Union Ins. Co., 63 Mo. App. 663; Renshaw v. Insurance Co., 103 Mo. 595, 15 S. W. 945, 23 Am. St. Rep. 904; Smith v. Insurance Co., 181 Mo. App. 455, 168 S. W. 831. It is only when the language in the contract is ambiguous that the rule obtains that it will be strictly construed against the insurer. Smith v. Insurance Co., supra; Banta v. Casualty Co., 134 Mo. App. 222, 113 S. W. 1140; Dunn v. Ins. Co., 197 Mo. App. 457, 196 S. W. 100; Mitchell v. Accident Ins. Co., 179 Mo. App. 1, 161 S. W. 362. The contract must be construed as a whole, and when a clause in the policy stands with others its sense may be gathered from those clauses which precede and those which follow. Straus v. Insurance Co., 94 Mo. 182, 6 S. W. 698, 4 Am. St. Rep. 368. When words are used in one sense in one part of a contract, and such words are again used in the same contract, they are as a general rule deemed to have been used in the same sense as in the first instance; nothing to the contrary appearing. 13 C. J. § 491, p. 532. Of the construction of contracts in general, no one challenges the rule that all parts must be considered together, if possible. This is the general rule.

The policy was issued on January 12, 1916, for one year, the premium paid, and policy delivered. The insured was a duly licensed veterinarian, and was practicing his profession in Johnson county. On September 27, 1916, insured was vaccinating some hogs for J. T. Allen, giving them what is called the "double treatment." After a hog was treated, one of its ears was slit, so as to distinguish it from those yet untreated. After administering the treatment to one of the hogs, and while endeavoring to slit its ear, insured accidentally cut his finger, from which blood poison resulted, and from which he died on October 14, 1916. Defendant denies liability. By the terms of the policy defendant insured Dr. Peter B. Maupin, subject to the terms, provisions, conditions, and limitations stated, provided the injury sustained was effected exclusively by external, violent, and accidental means, which should, independently of all other causes, immediately, continuously, and wholly disable insured, or be the sole cause of his death, or other injuries specified, within 30 days from the date of the event causing such injury, and provided such injury to the insured be received under certain conditions and specifications named. There are 12 of these specifications, and it is conceded that, if insured's injury falls under either, it is under the twelfth one. By the policy and this specification it is provided that the insurer, the defendant, will be liable

"In the event that a legally qualified physician, surgeon, or dentist, while holding an autopsy or performing a surgical operation, or a legally qualified undertaker while embalming or preparing a body for burial, actually cuts or wounds himself, and by reason of such cutting or wounding and simultaneously therewith be inoculated with poison."

[1-3] The controversy hinges on the construction of "surgeon" and "surgical operation" as used in the specification, quoted. Plaintiff contends that the insured was a "surgeon," and that the operation he was performing when injured was a "surgical operation," as these terms are used in the specification; while defendant, on the other

[4] With these statements of the law as we find it, it is pertinent to consider other specifications in the policy sued on in the instant case, as they throw some light on the construction which we think was evidently intended by the word "surgeon" and the words "surgical operation," as used in specification 12. Specification 8 made the defendant liable to the insured for accidental injury

"While riding within a conveyance drawn by horse power, provided that the insured shall not be a hired driver thereof, nor be riding or driving in or upon any conveyance used for any business purpose or any work whatsoever (but this exception shall not apply to any legally or veterinarian qualified physician, surgeon [italics ours] then employed in the practice of his or her profession, nor any commercial traveler selling goods from sample for future delivery only) in consequence of a collision or other accident to the conveyance in which the insured is so riding."

Specification 11 makes defendant liable for accidental injury to insured—

"While riding upon a motor bicycle, not being used for any business purpose (but this exemption shall not apply to any legally qualified physician, surgeon, or veterinarian [italics ours] then employed in the practice of his or her profession, nor any commercial traveler selling

goods from sample for future delivery only), and in consequence of a collision with any other conveyance except another motor bicycle."

and

lace v. Protective Ass'n, 126 Mo. 104, 28 S. W. 877, 30 L. R. A. 209, 47 Am. St. Rep. 638.

The word "surgeon," unqualified, in the In order to sustain recovery upon the polmind of the ordinary individual, means one icy before us, we must say that the word possessed of such knowledge of the human "surgeon," as used in specification 12, in- body, and such other knowledge as the laws cludes a veterinarian, and that the act of of our land require, and possessed of such administering the treatment to the hog and skill in the use of instruments, that he may be expected with reason to correct or relieve the slitting of the ear was a "surgical operation" as that term is used. Bearing in mind some unnatural condition of the human body. the law as we find it relative to the consider- We do not think that the "mass of mankind” ation that should be given to clauses which would connect the idea of a veterinarian with precede and which follow, and reverting to the word "surgeon" as that word is generally specifications 8 and 11, it would appear that used. We would be doing violence to what the word "surgeon," in the policy, was not we think is the only reasonable construction intended to cover and embrace a veterina- of the contract of insurance, when all the rian. It is clear that in specifications specifications are considered together, to say 11 "veterinarian" is not used as synonymous that the word "surgeon," as used in specificawith "physician" and "surgeon." In these tion 12, is broad enough to include a veteritwo specifications separate and distinct ex-narian. Not only would we be doing violence ceptions are made to the limitations therein to the plain terms of the policy, but we would named. In specification 12 distinct classes certainly be out of line with all the adjudiare covered, the physician, surgeon, and cated cases laying down general rules of dentist. Following the literal context in each construction and interpretation. of the three specifications, and agreeing for the moment that "veterinarian" is synonymous with "surgeon" in 8 and 11, and then applying the same reason to 12, we could with as much reason say that the word "dentist" is also synonymous with "surgeon" as therein used. Giving the language this construction, a dentist could recover under either of the three specifications, whether named or not, notwithstanding the policy is a limited

one.

In view of our conclusion to be given the word "surgeon" as used in specification 12, it is unnecessary to consider other questions

raised.

The judgment below is reversed.

STURGIS, P. J., and FARRINGTON, J.,

concur.

CO. (No. 2566.)

The best construction-and, if the best, it HAGGARD v. SOUTHWEST MISSOURI R. must be the correct one-is that which is made by viewing the subject of the contract

as the mass of mankind would view it; for (Springfield Court of Appeals. Missouri. Feb.

it may be safely assumed that such was the aspect in which the parties themselves viewed it.

"Accordingly it is a familiar rule of constant application that courts give effect to all written instruments according to the ordinary popular meaning of the terms employed, when nothing appears to show that they were used in a different sense, and no unreasonable or absurd consequences will result from doing so. If a particular use of a word becomes common, that use must be taken into consideration in construing a contract, regardless of whether its meaning can be found in any lexicon. Stated differently, the rule may be said to be that the nontechnical terms of every written instrument are to be understood in their plain, ordinary, and popular sense, unless they have generally, in respect to the subject-matter, as by the knowledge of trade or the like, acquired a peculiar sense distinct from the popular sense of the same words, or unless the context evidently points out that in the particular instance, and in order to effectuate the immediate intention of the parties it should be understood in some other peculiar sense." 6 R. C. L. 843; Webb v. Insurance Co., 134 Mo. App. 576, 115 S. W. 481; Love

28, 1920. Rehearing Denied April

13, 1920.)

1. Master and servant 107(6)-Failure to furnish light held negligence.

der safe the place for work, the failure of Where artificial light is necessary to renmaster to exercise ordinary care to provide such light renders him liable for consequent injuries.

2. Master and servant 226(1)-Risk of master's negligence not assumed.

A servant does not assume a risk of the

master's negligence; knowledge of the negligence being an element to be considered only on question of contributory negligence.

3. Master and servant 289 (7)-Contributory negligence in continuing work with knowledge of danger question for jury.

Contributory negligence in continuing to work with knowledge of negligence of master is always a question for the jury, except in cases where the danger rendered by known negligence is so obvious that no ordinarily prudent man would have continued in the service; and before a court can declare such a condition it must be so apparently negligent

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(220 S. W.)

for him to continue work that reasonable minds | provide plaintiff a reasonably safe place in do not differ upon it.

4. Master and servant 289 (7)—Contributory negligence in working in unlighted place question for jury.

Whether a car cleaner injured by falling into a pit in a car barn, was guilty of contributory negligence held for the jury, although he knew the pit was there, and that employer had failed in its duty to furnish lights.

5. Master and servant 226(2)-Risk of falling into unlighted pit held not assumed.

A car cleaner working in a car barn did not assume the risk of injury by falling into a pit which the master had negligently failed to light, although he knew of presence of the pit and the failure to light.

which to perform his work; and if you believe and carelessly failed to cause said barn and the from the evidence that defendant negligently place where plaintiff worked to be sufficiently

lighted to enable plaintiff to see and avoid said pit, and if you further believe that plaintiff did not know that said pit was there [italics ours], and that by reason of such failure, if any, to cause said barn to be sufficiently lighted, said place was rendered dangerous and unsafe for plaintiff working in said barn, and if you further find from the evidence that on said 17th

day of May, 1918, plaintiff, while performing his duties as the employé of defendant and on account of being unable to see said pit as a result of said barn not being sufficiently lighted (if you believe he was unable to see said pit on account of its not being sufficiently lighted)

Appeal from Circuit Court, Jasper County; stepped into said pit and was injured thereby, J. D. Perkins, Judge.

Action by John Haggard against the Southwest Missouri Railroad Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Frank H. Lee, John T. Craig, and Ray Bond, all of Joplin, for appellant. McReynolds & McReynolds and J. H. Flanigan, Jr., all of Carthage, for respondent.

FARRINGTON, J. This is a master and servant case. The plaintiff filed suit against defendant for damages on account of injuries alleged to have been received by him while in the employ of the defendant. A number of grounds of negligence were assigned, but the case, when submitted by the plaintiff, eliminated all grounds of negligence except the following:

and if you further find that the plaintiff at said time was exercising ordinary care for his own safety, then your verdict will be in favor of the plaintiff."

The defendant in answer to the charge of error, contends that the plaintiff made no case that should have ever been submitted to the jury, and contends that the trial court should have given the instruction asked by it in the nature of a demurrer to the evidence. The defendant does not seriously contend that, if there was a case made by the plaintiff, the instruction complained of by the plaintiff does not contain error, but relies upon the broad ground that, no case having been made, there could be no reversible error in the instruction. This necessitates a statement of the facts of the case as told by the plaintiff, who was the only wit

"That the defendant negligently and careless-ness for plaintiff, viewing such testimony in ly failed to furnish sufficient light in said barn, and by reason thereof plaintiff was unable to see said pit and was liable to fall therein."

its most favorable light, and for the purpose of this appeal taking as true that which the plaintiff testified to.

It appears that the defendant operated a The cause was submitted to the jury, car barn at Webb City, Mo., which is dividwhich returned a verdict for defendant. The ed into stalls or sections. These stalls are plaintiff appeals, alleging that the court err-196 feet long and 27 feet wide, throughout ed in modifying an instruction asked by him, and assigning that the same error was incorporated in the instructions asked by the defendant and given by the court.

The plaintiff asked an instruction which was modified by the court over his objection and exception. We set out the instruction as given by the court after modification, and italicize that part which the court added of its own motion and that part which the plaintiff now contends constituted error against him.

"You are instructed that it is admitted in this case that the plaintiff, on the 17th day of May, 1918, was working for defendant as its employé, in defendant's car barn at Webb City, Mo., and that the defendant maintained beneath the tracks in said car barn pits to enable workmen to get under said cars; and you are instructed that it was defendant's duty, as plaintiff's employer, to exercise ordinary care to

the length of which are run two tracks upon which the street cars owned by the company are run for the purpose of cleaning, repairing, and working on while in the barns. Between these tracks there is a pit run practically the full length of the barn, which pit is about 4 feet wide and 4 feet deep, placed under the tracks for the purpose of permitting the workmen and cleaners to work on the wheels and machinery when necessary to go under the cars. The stall lies east and west, and the car entrance to this stall is on the west. The tracks run back to within about 10 feet of the back or east end. The pit commences near the west end or entrance end and runs the full length of the track. Artificial lights are provided in the stall, hung or stationed along through it for the purpose of lighting it up. The natural light enters this stall from the west or

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

a light I could have seen the pit that morning."

In referring to the pit, he said:

entrance end, which, when the doors are. The only light was what was in front, the east end of the barn. There was no light back at open, as they were on the day plaintiff was If there had been injured, makes an opening or space of about the west end of the barn. 26 feet wide by 16 feet high. On the east end, directly back or opposite the end of each track, are double windows which permit light to come in from the east end. There are no natural side lights or windows. On the day plaintiff was injured he entered the stall from the east end and was told by the man under whom he was working for the defendant, another car cleaner, to clean up a car which was located at the extreme east end of the building. It appears that there were no other cars on this track that morning.

The plaintiff testified that he was 69 or 70 years of age, that his eyesight was good, and that on the morning of May 17, 1918, was the beginning of the second day he began to work for the defendant company, having worked there in that stall cleaning cars all the day before. He testified that when he went to work he was told by his foreman to put the trolley of the car on the wire so that it would light up the car, and further testified that the electric lights throughout the stall, which were 16 candle power incandescent lights, three in number, in a row, stationed every 14 feet apart throughout the stall, were not lighted up. He further testified that on the day before these lights were lighted while he worked in the barn. He says that it was dark where he was working on this car, to such an extent that he could not see the rope that held the trolley; that he was reaching and feeling for this rope when he stepped into the pit which was under the track and was injured. The place where he stepped into this pit was at the west end of the car, which, as stated before, was stationed at the extreme east end of the track. The car, therefore, was be

tween where he was and the windows which permitted the natural light to come into the stall from the east end thereof; he being the full length of the car and about 10 feet from the east or back end of the stall, and being probably 150 to 165 feet from the west or entrance end of the stall, where the doors were located.

On the question of whether plaintiff made out a case under the allegation of failure to properly light, we turn to plaintiff's testlmony and find that he says:

"The lights were not burning in the barn. They were not burning that morning when I I started to work. It was dark in the barn. did not know this pit was there along underneath the cars; they were covered up and I was busy working [which had reference to the day before he was injured]. I was working on the side and never had any occasion to pay any attention to it. This pit was covered up when the cars were on the track. I did not know there was a pit under this track or between the tracks at the place I fell in before the accident happened. There was no light there.

"I don't know how far from the east end it commenced. The car was run up until I couldn't see no pit that morning, and the day before I didn't see any pit at the east end. I might have seen the pit along under the car, but didn't pay any attention. I don't know how many cars were in there that day. The barn was about full. I don't know how many cars one of these tracks held in the barn. I don't know how many cars I cleaned the first day; I forget now."

He testified:

That this was the first car he had attempted to light up, and that that part of the business had been attended to by the man he was working under the day before. He was injured between 7 and 7:30 o'clock in the morning, and the day was a bright, sunshiny day, and the day before he was injured was also a bright, sunshiny day. "When I went around to put this trolley on the car, I reached for the trolley rope. I came down the side of the car and stepped around and reached up for the cord. I reached with my right hand. I was on the south side facing the car. It was on my right side. I reached with my right hand. When I reached for the cord I was facing the east. I did not have hold of anything with my left hand. Coming around the car and reaching for the cord, my face would really be north. I was facing the north, and not the east. I felt along the side of the car, or the back end of I did that because it was so dark. The it. I daylight wasn't sufficient for me to see. thought I could reach the cord from where I was. I wasn't paying any attention to whether there was one there or not. I was paying no attention to what was underneath my feet or what the situation was there. I found the

pit out this morning of the 17th. When I couldn't reach the rope I just stepped over further."

He further testified that after he was down in the pit he looked down it toward After he the door and saw a little ladder. got out of the pit he went back to the car, and testified that the lights came on in the stall.

If this testimony be taken as true, it shows that the defendant maintained artificial lights in this stall; that on the day before, when it was a clear day, they were lighted; that on this day when plaintiff was hurt, which was a clear day, they were not lighted; that at the place where they put him to work there was a pit 4 feet wide and 4 feet deep at the immediate west end of the car; and that it was so dark he could not see the pit, and in reaching for the trolley rope, which he could not see, he stepped into this open pit and was injured.

[1] Under the decisions of this state there

(220 S.W.)

can be no doubt on the question of negligence, was not a necessary finding for his recovery. in failing to provide sufficient lights at the place they put the plaintiff to work. It is held in the very recent case of Baldwin v. Hanley et al., 216 S. W. 998, that where artificial light is necessary to render safe the place where the servant is required to work, the failure of the master to exercise ordinary care to provide such light renders him liable for consequent injuries. See, also, De Late v. Loose-Wiles Biscuit Co., 213 S. W. 885; Wright v. Hammond Packing Co., 199 S. W. 754; Yost v. Atlas Portland Cement Co., 191 Mo. App. 422, 177 S. W. 690.

[2, 3] It is the settled law of this state now that a servant does not assume a risk occasioned by a negligent act of his master. If a master has been negligent and the servant is aware of it, his conduct in continuing to work is an element to be considered only on questions of contributory negligence, which is always a question of fact for a jury except in cases where the danger rendered by the known negligence is so obvious and appalling that no ordinarily prudent man would have continued in the service, and before a court can declare such a condition it must be so apparently negligent for him to continue work that reasonable minds do not differ upon it. See cases heretofore cited and the leading case of Patrum v. Railroad, 259 Mo. 109, 168 S. W. 622.

This modification and the instructions given by the court at the request of the defendant shows that the theory upon which the trial .court submitted this case was that, if plaintiff knew that there was a pit under the car about which he was working, and knew that the defendant had failed in a duty to furnish lights, and in working about the car fell into the pit, he was guilty of contributory negligence in law, such as would bar a recovery. This we are unwilling to agree to. As we view the case, the most the defendant was entitled to on the question of contributory negligence was that the jury say whether his conduct with his knowledge of the conditions that prevailed was such as conforms to that which would have been used by a reasonably prudent man under the same circumstances, and we therefore hold that the court erred in modifying the instruction and should have given it as presented by the plaintiff, and that the defendant's instructions on the question of contributory negligence should have left it open for the jury to say whether plaintiff's conduct under the circumstances and with the knowledge they might find that he had concerning the conditions amounted to negligence on his part.

[5] The doctrine of assumption of risk, as the matter presents itself to us, has no place in this case. The sole questions for determination are: First, was the defendant guilty of negligence under all the facts? and second, if the jury find that the defendant was negligent, then under all the facts was the plaintiff negligent? The answer of these two issues by the jury will solve this lawsuit.

For the error heretofore pointed out in the instructions, the judgment is reversed, and the cause remanded.

STURGIS, P. J., and BRADLEY, J., con

cur.

Mere knowledge on the part of the servant of the master's negligence does not render him guilty of contributory negligence as a matter of law, but is a fact to be taken into consideration by the jury in determining whether the plaintiff conducted himself, under the circumstances and surrounding conditions, as a reasonably prudent man would have acted. See De Late v. Loose-Wiles Biscuit Co., 213 S. W. 885; Wright v. Hammond Packing Co., 199 S. W. 754; Yost v. Atlas Portland Cement Co., 191 Mo. App. 422, 177 S. W. 690; Garner v. Bridge Co., 194 S. W. loc. cit. 85; Henderson v. Stove Works, 197 S. W. 177; Bliesner v. Distilling Co., 174 Mo. App. 139, 157 S. W. 980; Hosheit v. Lusk et al., 190 Mo. App. 431, 177 S. W. 712. [4] Holding, as we do, that the plaintiff's evidence makes out an action of negligence against defendant, we now come to the question raised by appellant on the modification. Indictment and information 72-Use of of his instruction made on the court's own motion. The effect of this instruction, as the court gave it, was that before the jury could find for plaintiff, although they should find the premises declared in the instruction as requested by the plaintiff, they must find that the plaintiff did not know that the pit was there. It has the same effect as declaring, as a matter of law, that if the plaintiff did know that the pit was there, then, regardless of all else, there could be no recovery by him under the facts of this case. It required a finding for the plaintiff which

STATE v. BRAGG et ux. (No. 2600.) (Springfield Court of Appeals. Missouri. Feb. 28, 1920. On Motion for Rehearing, April 13, 1920.)

disjunctive proper where following language of statute; "bawdyhouse"; "assignation house."

An indictment, charging the maintaining of "a common assignation or bawdyhouse" in the language of the statute, is not bad because of the use of the disjunctive "or" instead of the conjunctive "and"; the terms "bawdyhouse" and "assignation house" being synonyms, to which the rule requiring conjunctive statement does not apply.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Assignation House; Bawdy house.]

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