Kearney v. Washington Nat. Ins. Co.

• Decision Date: 09 December 1935
• Docket Number: 25881.
• Citation: 52 P.2d 903,184 Wash. 579
• Parties: KEARNEY v. WASHINGTON NAT. INS. CO.
• Court: Washington Supreme Court

52 P.2d 903

184 Wash. 579

KEARNEY v. WASHINGTON NAT. INS. CO.

No. 25881.

Supreme Court of Washington

December 9, 1935

As Amended Jan. 29, 1936.

Department 2.

Appeal from Superior Court, King County; Roger J. Meakim, Judge.

Action by Robert S. Kearney against the Washington National Insurance Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Du Puis & Ferguson, of Seattle, for appellant.

Kennedy & Schramm and Emil G. Gustavson, all of Seattle, for respondent.

MAIN, Justice.

This action was brought to recover upon an accident insurance policy. The defendant denied liability, and, as an affirmative defense, pleaded certain provisions of the policy which, it claimed, exonerated it from liability. The cause was tried to the court and a jury, and resulted in a verdict in favor of the plaintiff. The defendant moved for a judgment notwithstanding the verdict and, in the alternative, for a new trial, both of which motions were overruled. Judgment was entered against the defendant in the sum of $921, from which it appeals.

The facts necessary to present the questions here for determination may be summarized as follows: The respondent during the year 1906, went to Alaska, and some time thereafter had what is called snow blindness, which troubled him for a short period of time. He also had ptosis, which is the medical term for drooping eyelids, but these had at no time given him serious trouble. He returned from Alaska in 1916, and at that time was troubled with rheumatism, which would appear to come and go, but he was not disabled thereby. His treatment therefor was the application of what may be called home remedies.

In the year 1917, after the respondent's return to Seattle, he was employed as a watchman upon one of the docks of the Port of Seattle, and held that position until September 14, 1934 when he sustained the injury for which this action was brought. In 1922, he applied to the appellant for the accident policy involved in this action. This policy provided that, in order to recover thereunder, the bodily injuries sustained by the insured must be through external, violent and accidental means, and not directly or indirectly from any other cause or causes. In the application for the policy, one of the questions was whether the applicant had been disabled either by accident or illness, 'or received medical or surgical attention during the last ten years,' which was answered in the negative.

On the night of September 14, 1934, while the respondent was engaged in the line of his duties as watchman, he fell down a flight of stairs, twelve or thirteen steps, struck his head, and when he got up, as he testified, everything appeared to be dark. Soon thereafter his wife came to the dock for the purpose of taking him home shortly after 11 o'clock, which was the time of his last round of inspection on the dock. She accompanied him on the 11 o'clock inspection, and then they went home. On the following morning, when the respondent awoke, he testified that he was blind. In 1931, he had an injury to one of his knees for which the appellant paid time loss. At this time, the respondent learned that in his left eye he only had about 20 per cent. normal vision. His family physician, who had attended him for a period of ten years, testified that shortly prior to the time of the accident, when he examined him, he was in good health, with the exception of the condition of his eye, which had been impaired for a period of about ten years. In his regular duties on the dock, it was necessary for the respondent to read dials, make memoranda, and, as one of his superiors testified, he did his work well.

It is first contended that the appellant is relieved from liability because the respondent, in his answer to the question above mentioned in his application, did not mention the snow blindness, the rheumatism, or the drooping eyelids. Assuming, without so deciding, that these were matters which it was the duty of the applicant to state in response to the question, it does not follow that his failure to do so voids the policy, because, even though they should have been stated, the failure to state them does not defeat the action unless he refrained from stating them with actual intent to deceive. Rem.Rev.Stat. § 7238; Tison v. American National Insurance Co., 163 Wash. 522, 1 P.2d 859, 3 P.2d 998; Brigham v. Mutual Life Ins. Co., 95 Wash. 196, 163 P. 380; Eaton v. National Casualty Co., 122 Wash. 477, 210 P. 779; McCann v. Reeder, 178 Wash. 126, 34 P.2d 461. In this case, there was no evidence which would justify the court in holding, as a matter of law, that the respondent failed to disclose the matters mentioned with intent to deceive.

It is next contended that the respondent's condition of total or almost total, blindness after the accident, which continued until the time of the trial, was due to arteriosclerosis in his left eye. Whether his condition at the time of the trial and after the accident was due to the fall, the expert testimony was directly in dispute. On the part of the appellant, it was testified that his condition was not caused by the fall, but was due to arthritis and arteriosclerosis, which was caused by some lowgrade infection in his system. On the part of the respondent, it was testified that the condition was due to the fall. The policy contained the provision above mentioned, to the effect that the disability must be such as is not contributed to directly or indirectly by disease or bodily infirmity at the time of the accident. With...