Opinion
April 3, 1939.
1. — Insurance — Evidence. In action on total disability provision of life policies for total and permanent disability benefits from "effects of hernia, amputation of left leg, as result of freezing and gangrene and diabetes," hospital records showing final diagnosis as "Diabetes Mellitus Arteriosclerosis" and that plaintiff "had had diabetes for about ten years" were not conclusive on plaintiff where plaintiff testified that he did not tell hospital that he had diabetes for ten years, or that he had diabetes, and that he had no trouble with his feet until his left foot was frozen; further, defendant insurer's medical examiner examined plaintiff before policies were issued and examiner knew, or had means of knowing, whether plaintiff had diabetes at time of issuance of policies.
2. — Appeal and Error. In determining on appeal whether or not evidence in suit on disability provision of life policies was sufficient to show that plaintiff was totally and permanently disabled, within the terms of the contracts, Court of Appeals must view evidence in light most favorable to plaintiff.
3. — Evidence. Testimony of plaintiff that he delivered exhibit to defendant is not conclusive of that question where at trial he testified he had not delivered same; even in absence of explanation of lack of harmony between statements in deposition and at trial, jury could believe he told truth at trial; value of plaintiff's evidence, even though it strains credulity, was nevertheless for jury.
4. — Evidence. In suit on disability provisions of life policies, plaintiff's testimony that he did not have diabetes at time of issuance of policies in 1926 and that he did not take insulin prior to 1935 was statement of fact within his knowledge, and its worth was for jury.
5. — Trial. Evidence held sufficient to warrant jury finding plaintiff's disability was caused by disease occurring and originating subsequent to issuance of policies.
6. — Insurance. Plaintiff in suit on total disability provisions of life policies, who requested clinic to prepare blank form for proof of claim, which was not done, and who filled in blank form furnished him by defendant insurer, obtained three blank forms, which were executed by doctors treating him, presented evidence thereof sufficient to allow jury to find plaintiff complied with "due proof" provision of the policies.
7. — Trial. Instruction in action on total disability provision of life policies, telling jury that if it found that plaintiff became totally and permanently disabled as result of "disease" occurring and originating after issuance of policies, held not erroneous as permitting to speculate as to any disease it might think caused plaintiff's disability, only disease (other than gangrene) shown by evidence being diabetes, and jury would understand disease to mean diabetes.
8. — Trial. Instruction which would have told jury that if it found defendant insurer requested plaintiff to furnish a report from clinic where plaintiff received treatment prior to issuance of policies upon which suit was brought, and if it further found plaintiff did not furnish due proof of disability, verdict should be for defendant, held properly refused, as it would have submitted a question of law on whether or not failure to furnish report was failure to furnish due proof.
9. — Trial — Insurance. Instruction, in suit on disability provision of life policies, that if plaintiff delivered to defendant a letter from clinic at which plaintiff was treated to the effect that plaintiff received insulin treatments prior to issuance of policies in suit, diabetes was conclusively established prior to issuance of policies, held properly refused, as jury would have understood thereby that plaintiff's evidence to the contrary was not true and should be disregarded.
10. — Trial. Where jury, in suit on disability provision of life policy, returned verdict for one month's benefit, when plaintiff was entitled to seven months or nothing, such allowance was not warranted by either evidence or instructions, but where defendant neither made objection nor saved no exception thereto, trial court could not be convicted of error, as verdict was not void on its face, or on the face of the record, and had court's attention been called to infirmity in verdict, he could have returned jury to its room to consider verdict further.
Appeal from the Circuit Court of Buchanan County. — Hon. Sam Wilcox, Judge.
AFFIRMED.
John C. Landis, 3d, William C. Michaels and Kenneth E. Midgley for appellant.
Harry Cole Bates, Landis Landis and Michaels, Blackmar, Newkirk, Eager Swanson, of Counsel.
(1) The trial court erred in refusing to give defendant's requested Instructions A and C in the nature of demurrers to the evidence, since plaintiff failed to sustain his burden of establishing that he was suffering prior to suit with a disability resulting from disease originating after the policies were issued, and that he had furnished defendant due proof thereof. And hereunder: (a) The allegation in the petition that disability was due to diabetes is a judicial admission binding on plaintiff. Fletcher v. Henderson, 333 Mo. 349, 62 S.W.2d 849; Federal Land Bank of St. Louis v. Cantley, 226 Mo. App. 559, 44 S.W.2d 269; State ex rel. Boatmen's Nat. Bank v. Webster Groves General Sewer District, 327 Mo. 594, 37 S.W.2d 905. (b) Lay testimony of apparent good health and ability to work does not conflict with the medical testimony in a case of this kind. Kirk v. Met. Life Ins. Co., 336 Mo. 765, 81 S.W.2d 333; Mudd v. John Hancock Mut. Life Ins. Co. (Mo. App.), 39 S.W.2d 450; Clark v. Nat. Life Acc. Ins. Co., 288 S.W. 944; Smiley v. John Hancock Mut. Life Ins. Co. (Mo. App.), 52 S.W.2d 12. (c) The evidence is not in dispute, considering the proofs submitted and other documentary evidence, that plaintiff had diabetes prior to issuance of the policies, and that it is incurable. Kirk v. Met. Life Ins. Co., supra; Mudd v. John Hancock Mut. Life Ins. Co., supra; Clark v. Nat. Life Acc. Ins. Co., supra; Smiley v. John Hancock Mut. Life Ins. Co., supra. (d) Plaintiff's equivocation in his testimony cannot defeat the effect of his admission that he submitted Exhibit A as part of his proofs. Sexton v. Street Railway, 245 Mo. 254; Weltmer v. Bishop, 171 Mo. 116; Clark v. Bridge Co., 333 Mo. 721, 62 S.W.2d 1079; Roseman v. United Railways Co. (Mo. App.), 251 S.W. 104; Burkett v. Gerth (Mo. App.), 253 S.W. 199; Hayes v. S.S. Kresge Co. (Mo. App.), 100 S.W.2d 325; Champagne v. Hamey, 189 Mo. 709; Fleming v. Anderson (Mo.), 232 S.W. 718; Kirk v. Met. Life Ins. Co., supra; Mudd v. John Hancock Mut. Life Ins. Co., supra; Clark v. Nat. Life Acc. Ins. Co., supra; Smiley v. John Hancock Mut. Life Ins. Co., supra. (e) Even if the contrary were true, the verdict should have been directed for failure to prove that due proof was furnished. Burnham v. Royal Ins. Co., 75 Mo. App. 394; Clanton v. Travelers Protective Association, 101 Mo. App. 312; Beem v. General Acc. Fire Life Assurance Corp. (Mo. App.), 105 S.W.2d 956; Sampson v. Postal Life Casualty Co. (Mo. App.), 78 S.W.2d 466. (2) The verdict was not responsive to the issues and shows an entire disregard for the court's instructions. And hereunder: (a) A verdict for only one-sixth of the minimum amount permitted under the instructions in the event of a verdict for plaintiff, is prejudicial to defendant, and cannot stand. Johnson v. Labarge, 46 Mo. App. 433; Cole v. Armour, 154 Mo. 333; Ferd Bauer Engineering Contracting Co. v. Arctic Ice Storage Co., 186 Mo. App. 664, 671; Shoemaker v. Johnson et al., 200 Mo. App. 209; Abbey v. Altheimer, 263 S.W. 471; Weisels-Gerhardt Real Estate Co. v. Pemberton Invest. Co., 150 Mo. App. 626; Witty v. Saling, 171 Mo. App. 574; Watson v. Esther, 226 S.W. 324; Burks v. Woods, 279 S.W. 168; Morey v. Feltz, 187 Mo. App. 650; Lindstrom v. K.C. So. Ry., 202 Mo. App. 399; Busse v. White, 274 S.W. 1046. (3) The trial court erred in refusing to give Instruction G requested by defendant. Jacoby v. New York Life Ins. Co. (Mo. App.), 77 S.W.2d 840. (4) The trial court erred in refusing to give Instruction H requested by defendant. Kirk v. Met. Life Ins. Co., supra; Mudd v. John Hancock Mut. Life Ins. Co., supra; Clark v. Nat. Life Acc. Ins. Co., supra; Smiley v. John Hancock Mut. Life Ins. Co., supra; Tyler v. Hall, 106 Mo. 313; Wilkerson v. Hunt, 245 S.W. 615. (5) The trial court erred in giving plaintiff's Instruction I for the reason that such instruction constituted a roving commission and was broader than either the pleadings or the evidence. State ex rel. Peoples Bank v. Melton, 251 S.W. 447; Telaneus v. Simpson, 12 S.W.2d 920; Pattonsburg Savings Bank v. Koch, 255 S.W. 580; Macklin v. Construction Co., 31 S.W.2d l.c. 19. (6) The verdict was based on apparent false testimony and disregard of the evidence and was the result of passion, prejudice and sympathy, and should be set aside. Sexton v. Street Railway, supra; Empey v. Cable Co., 45 Mo. App. 424; Lehnick v. Street Railway Co., 94 S.W. 996; Jones v. Railway Co., 228 S.W. 780.
Joseph Goldman and John D. McNeely for respondent.
(1) There was no misrepresentation in securing the policies and even if there had been, same would not be available as a defense in this case. R.S. Mo., sec. 5735. Must actually deposit in court. Marion v. Ins. Co., 273 S.W. 271; Craig v. Metropolitan, 220 Mo. App. 914. This section applies to the disability insurance in these life policies. Shaw v. Mutual, 9 S.W.2d 687; Fraker v. Commonwealth, 278 S.W. 1053; Drucker v. Indemnity, 204 Mo. App. 516; Thrassler v. Association, 67 Mo. App. 505; Lavin v. Insurance Co., 101 Mo. App. 434. R.S. Mo., sec. 5633, making the effect of misrepresentation in life insurance policies a question for the jury would include disability clauses in this policy, even if the question of misrepresentation were in the case. Williams v. Mutual, 283 S.W. 64. (2) Defendant cannot split up his adversary's pleading and use dismembered parts thereof as an admission against him, and discard such parts as affect injuriously. Stock v. Schloman, 226 Mo. App. 240. (3) In passing on the trial court's refusal to give peremptory instruction in nature of demurrer to plaintiff's evidence, the reviewing court must take plaintiff's evidence as true, if it is not at variance with common reason, and disregard defendant's evidence where it is in conflict with plaintiff's evidence, and must give plaintiff the benefit of all reasonable inferences arising from evidence. Burns v. Aetna Life Ins. Co., 123 S.W.2d 185. (4) The fact that the physician of the defendant company examined plaintiff and found him in good health, especially in view of the corroborating testimony showing excellent health for more than seven years thereafter, makes the time of the origin of the disability a question for the jury. Scott v. National Life Co. (Mo. App.), 281 S.W. 67; Mudd v. John Hancock Life Ins. Co. (Mo. App.), 39 S.W.2d 450. (5) Contrary to the contention of appellant, where the health of the deceased is an issue, the testimony of lay witnesses is not without evidentiary value. Scott v. National Ins. Co. (Mo. App.), 281 S.W. 67, 69; Smiley v. John Hancock Life Ins. Co., supra; Bruck v. John Hancock Life Ins. Co., 194 Mo. App. 529; Rowe v. Mo. Nat. Life Co., 96 S.W.2d 889. Admissions in proofs of death are not to be regarded as conclusive against plaintiff where there is evidence tending to show that they were erroneously made, or tending to explain, repel or contradict them or tending to impair their force and effect. Bultralick v. Metropolitan Ins. Co. (Mo. App.), 233 S.W. 250; Hodges v. American Nat. Ins. Co. (Mo. App.), 6 S.W.2d 72; Remfry v. Ins. Co. (Mo. App.), 196 S.W. 775; Ryan v. Metropolitan Ins. Co. (Mo. App.), 30 S.W.2d 190; Bruck v. John Hancock Life Ins. Co., 194 Mo. App. 529; Rowe v. Mo. Nat. Life Co., supra. (6) As to proof, the contract requires the insured to furnish the Company "due proof on forms, which will be furnished by the Company, on request, that the insured has, while said policy and this supplement contract are in full force . . . become totally and permanently disabled . . . and that such disability has already continued uninterruptedly for a period of at least three months." The contract provides that "Payments shall begin as of the date of the commencement of such disability." Plaintiff's Instruction Number L tracks the contract and under said instruction the jury was given the discretion to determine the beginning of total disability regardless of the allegations as to its commencement in the proof of disability, a right that the company, by the terms of its contract, certainly reserved, and did not turn over to the discretion of the insured in making out his proof. The duty of the court to instruct the jury that they had the discretion to fix the time of disability and were not governed by the allegations in the notice or formal proof, is obvious. If Instruction D, given at defendant's request, is inconsistent with Instruction I given at plaintiff's request in that the former does not track the contract and the latter does, defendant, appellant here, cannot complain of his own error. Welsh v. Chicago Guaranty Fund Life Soc., 81 Mo. App. 30. The objection that all the instructions are inconsistent with an instruction given at defendant's request is unavailing where the latter instruction, given at defendant's request, was erroneous. Reardon v. Mo. Pac. Ry. Co., 114 Mo. 384. An instruction on measure of damages and limiting recovery not conflicting. Porter v. Chicago R. Co., 28 S.W.2d 1035; Consolidated School District v. Power Co., 46 S.W.2d 174. Defendant could not complain that instruction given in behalf of plaintiff was erroneous as in conflict with defendant's instruction, where giving of defendant's instruction was error, if plaintiff's instruction was correct. Youtz v. Sherman, 94 S.W.2d 917.
The defendant issued to plaintiff two policies of life insurance dated December 20, 1927, one for $3000, the other for $2000. Attached to and forming a part of each policy was a supplemental contract in which it was provided that defendant, upon receiving at its home office in New York City proof on forms to be furnished by it, that plaintiff while said policies and supplemental contracts were in force became totally and permanently disabled as the result of bodily injuries or disease occurring and originating subsequent to the issuance of the policies, and that such disability continued uninterruptedly for at least three months the defendant would pay to plaintiff a monthly income of $10 for each $1000 of insurance.
This action, in two counts, brought December 10, 1936, is to recover the monthly income provided in the supplemental contracts upon the alleged grounds that plaintiff became totally and permanently disabled on or about July 27, 1935, from the effects of "hernia, amputation of left leg as the result of freezing and gangrene, diabetes."
Trial to a jury resulted in a verdict for plaintiff on the first count (the $3000 policy) for $30; and on the second count (the $2000 policy) for $20. From the judgment on the verdict the defendant has appealed.
The defendant at the close of plaintiff's evidence and again at the close of all of the evidence requested that verdict be instructed in its favor. The requests were refused. The latter request is the only one with which we are concerned.
The insistence that plaintiff failed to make a case for the jury is founded upon the claim that plaintiff failed to show that "he was suffering prior to suit with a disability resulting from disease originating after the policies were issued, and that he had furnished defendant due proof thereof."
Plaintiff testified he suffered a left inguinal hernia in the early part of 1926, was surgically treated therefor at the Mayo Clinic in July, 1926; that after remaining in the clinic about five weeks he returned to his home in St. Joseph and did not thereafter suffer from the hernia; that from that time he attended to his mercantile and loan business until in February, 1935, when his left foot was frozen while he was moving snow from his driveway; that in July, 1935, he suffered a right inguinal hernia and was surgically treated therefor; that at that time he was advised that he had diabetes, which was the first time he had known he had that disease. While plaintiff testified his foot was frozen in February, 1935, he also said that he was taken to the Missouri Methodist hospital in a day or two thereafter and that the records of the hospital would show the "exact date" when he entered the hospital. He also testified his foot was frozen subsequent to the hernia operation in July, 1935. So we conclude, as defendant contends, that the frostbite, if any, was in February, 1936. From the time his foot was frozen plaintiff was unable to attend to his business, became totally and permanently disabled. It was shown in plaintiff's evidence that at the time he applied for the insurance he was examined by defendant's medical examiner, which examination included an examination of his urine.
Defendant introduced the records of the Missouri Methodist hospital. Therein it was stated that plaintiff was admitted to the hospital February 2, 1936, discharged 6 days later, final diagnosis "Diabetes Mellitus Arteriosclerosis;" that he "had diabetes for about ten years but felt very well until about two months ago when he noticed pain in left ankle while walking."
Defendant contends that plaintiff, as a part of his proof of claim, furnished to it a letter of the Mayo Clinic dated July 30, 1936. This letter was introduced by the defendant and it is known in the record as defendant's exhibit A. The letter was addressed "To whom it may concern" and stated in substance that plaintiff was admitted to the clinic in May, 1926, on account of a left inguinal hernia; that he had a slight amount of sugar in his urine, required 45 units of insulin daily for control; that subsequently his diabetes proved to be of a very mild degree; that he returned to the clinic in February, 1936; had been operated on in July, 1935, for right inguinal hernia "and following this there was an exacerbation of his diabetes requiring the administration of insulin to control it." There was expert opinion evidence from which the jury could have found plaintiff had diabetes at the time the policies were issued.
Plaintiff testified that he did not tell the Missouri Methodist hospital that he had had diabetes for ten years, or that he had diabetes; that he had no trouble with his feet until his left foot was frozen. From this evidence the jury could find the statements in the hospital record were not conclusive on plaintiff.
Of the Mayo Clinic letter: Plaintiff said that though he received that letter he did not deliver it to the defendant. His testimony is to the effect he did not take insulin in 1926, or at any other time prior to July, 1935. If plaintiff's testimony were true, then the statement in the letter to the effect that 45 units of insulin was administered to him daily in 1926 was untrue.
Further defendant's medical examiner examined plaintiff before the policies were issued. The record does not disclose whether the examiner did or did not report his findings to the defendant, but the examiner knew or had the means of knowing whether or not plaintiff had diabetes. It is not unreasonable to presume defendant chose a competent examiner; that such examiner well performed his duty and reported his findings to the defendant. The report must have been favorable, else the policies would not have been issued.
In determining whether or not the evidence was sufficient to show that plaintiff was totally and permanently disabled within the terms of the contracts, we must view the evidence in a light most favorable to him. The fact the plaintiff in his deposition said that he delivered Exhibit A to the defendant is not conclusive of that question for the reason that, in the trial, he testified that he had not delivered that exhibit to the defendant. Even in the absence of explanation of the lack of harmony between the statements in the deposition and his evidence at the trial the jury could believe he told the truth in the trial. [Sugarwater v. Fleming, 316 Mo. 742, 293 S.W. 111, 115; Moffett v. Butler Mfg. Co., 46 S.W.2d 869; Parrent v. Mobile Q.R. Co., 70 S.W.2d 1068, 1074.] The value of plaintiff's evidence, even though it strains credulity, was nevertheless for the jury. [Ensler v. Mo. Pac. R. Co., 23 S.W.2d 1034, 1037.]
In ruling the request for directed verdict we have not considered the evidence of lay witnesses to the effect that plaintiff appeared to be in good health prior to the summer of 1935. The personal testimony of plaintiff that from the time he underwent the hernia operation in 1926 to July, 1935, he was active in his business, never suspected that he had diabetes or any other ailment, never took insulin nor regulated his diet, is not without value. In meeting this situation the defendant in its statement and argument assumes that plaintiff had diabetes in 1926 and that insulin was administered to him at that time. It may be that plaintiff's statement to the effect he did not have diabetes in 1926, without more, was of no value; still as the fact that insulin must be injected subcutaneously is well known, his evidence that he did not take insulin prior to 1935 was the statement of a fact within his knowledge and its worth was for the jury.
Considering the facts and circumstances in a light most favorable to plaintiff we conclude the evidence was sufficient to warrant the jury in finding that plaintiff's disability was caused by disease occurring and originating subsequent to the issuance of the policies.
In arguing that plaintiff failed to make due proof of disability defendant says that "it was conclusively established that plaintiff submitted exhibit A to the defendant as part of his proof of disability;" that if plaintiff failed to furnish that exhibit he did not make the proof required of him by the defendant. We have hereinbefore discussed the question as to whether or not plaintiff furnished that exhibit and therefore deem further discussion unnecessary.
The evidence shows that plaintiff sent to the Mayo Clinic a blank form for proof of claim which had been sent to him by the defendant. The clinic did not return the form to plaintiff, nor, so far as the evidence shows, answer any of the questions propounded therein.
There was no way in which plaintiff could compel the clinic to answer the questions in the form, and it should not be held the failure of the clinic to fill in the blank should defeat this action, provided plaintiff furnished proof which was sufficient to show to a reasonable person that he had a cause of action on the policies. In July, 1936, plaintiff filled in a blank form furnished to him by the defendant in which he stated that he had been totally disabled since July 27, 1935, through frozen feet and hernia. Later in July, 1936, he filled in a blank form sent to him by the defendant, answered every question therein, obtained three blank forms to be filled in by doctors who had treated him. The questions in the forms were answered by the doctors. The answers stated in substance that plaintiff was totally and permanently disabled due to strangulated hernia and diabetes mellitus in July, 1935. One of the doctors in answer to the question, "What past history was given you," said, "diabetes for several yrs." This statement the jury could find was contradicted by plaintiff. In October, after defendant received the proof, it caused plaintiff to be examined by its physican who, as its witness, testified he found plaintiff "to be suffering from arterio-sclerosis, diabetes, and beginning dry gangrene in the toes of the left foot;" that he had no way of knowing "just how long" plaintiff had had diabetes; that in his opinion diabetes was the cause of plaintiff's condition.
Defendant has not complained of the failure of the Mayo Clinic to fill in the blank form sent to it by plaintiff. Considering the facts we conclude the evidence was sufficient to allow the jury to find that the plaintiff complied with the "due proof" provision of the contracts.
Plaintiff's instruction No. 1 told the jury that if it found that plaintiff became totally and permanently disabled as the result of disease occurring and originating after the issuance of said policies. . . . The defendant contends the quoted clause of the instruction permitted the jury to speculate as to any disease that it might think caused plaintiff's disability. The only disease, if we eliminate gangrene as a disease, which caused plaintiff's disability, as shown by the evidence of both parties, was diabetes.
In such circumstances the jury would understand the word "disease" meant diabetes. [Knaup v. Western Coal Mining Co., 114 S.W.2d 969.] The point is ruled against defendant.
The defendant assigns error to the action of the court in refusing its requested Instructions G and H.
Instruction G. would have told the jury that if it found the defendant requested plaintiff to furnish a "report from the Mayo Clinic, as part of the plaintiff's proofs, and, if you further find that the plaintiff did not deliver" Exhibit A. to the defendant, and if you find that the plaintiff thereby did not furnish due proof, then the verdict must be for the defendant. There was no evidence the defendant requested plaintiff to furnish a report from the Mayo Clinic. The request was for the clinic to answer questions prepared by the defendant and stated in a blank form sent by plaintiff to the clinic. The instruction would have submitted a question of law, namely, whether or not the failure to deliver the exhibit to the defendant was a failure to furnish due proof. The court properly refused the instruction.
Instruction H. said that if plaintiff delivered Exhibit A. to the defendant then it is conclusively established that plaintiff had diabetes prior to the issuance of the policies. The material and important statement in the letter that plaintiff was administered 45 units of insulin daily was shown by plaintiff's evidence to be untrue. The jury would have understood the instruction meant that plaintiff's evidence was not true and should be disregarded, and for that reason the instruction was erroneous.
The defendant argues that the verdict, evidently for only one month's disability, was not responsive to the issue and "shows a disregard for the court's instruction." Under the evidence and instruction the plaintiff, if he were entitled to recover at all, was entitled to recover for seven months' disability, hence the allowance of one month's benefit was not warranted by either evidence or instructions.
In the case of Cole v. Armour, 154 Mo. 333, 55 S.W. 476, the plaintiff was entitled to recover $12,229.34 or nothing. The jury returned a verdict in his favor for $6000. On the defendant's appeal the court reversed the judgment rendered on the verdict for the reason the verdict was not responsive to the issue nor to any testimony in the case.
Is the present defendant in position to urge the verdict was not responsive to the issues? The verdict was received and judgment rendered thereon on the same day. No objection was made either as to the form or substance of the verdict until after it was received and the jury discharged. The verdict was not void on its face nor on the face of the record. The infirmity therein appeared when the evidence and instructions were examined. The failure of the verdict to call upon defendant to pay as much as it owed was an error to which the defendant made no objection nor saved exception as it should have done if it desired to convict the trial court of error in receiving the verdict. [Dixon v. Atkinson, 86 Mo. App. 24, 30.] If the defendant had called the attention of the trial judge to any infirmity in the verdict at the time the verdict was returned, as it had right to do (Jordon v. St. Joseph Ry., Light, Heat Power Co., 73 S.W.2d 205), he could have returned the jury to its room to further consider the verdict. [Keyes v. Chicago, B. Q.R. Co., 31 S.W.2d 50.] It must be remembered this appeal is legally a charge that the circuit judge committed error prejudicial to the defendant. Manifestly, it would be unfair to convict such judge of an error on account of a ruling to which the defendant did not object at the time.
The charge in the petition that plaintiff lost his left leg was evidently inserted after the suit was brought because that loss was sustained subsequent to the commencement of the action. Neither the loss of the left leg nor the injury caused by freezing was submitted in the instructions. Error prejudicial to the defendant is not shown.
The judgment is affirmed. Sperry, C., concurs.
The foregoing opinion of CAMPBELL, C., is adopted as the opinion of the court. The judgment is affirmed. All concur.