The Pacific Mutual Life Insurance Company v. Despain

• Decision Date: 11 April 1908
• Docket Number: 15,465
• Citation: 77 Kan. 654,95 P. 580
• Parties: THE PACIFIC MUTUAL LIFE INSURANCE COMPANY v. WILLIAM DESPAIN
• Court: Kansas Supreme Court

95 P. 580

77 Kan. 654

THE PACIFIC MUTUAL LIFE INSURANCE COMPANY v. WILLIAM DESPAIN

No. 15,465

Supreme Court of Kansas

April 11, 1908

Decided January, 1908.

Error from Wyandotte court of common pleas; WILLIAM G. HOLT, judge.

STATEMENT.

THIS is an action on an accident-insurance policy issued December 20 1904, to William Despain by the Pacific Mutual Life Insurance Company, of California, to recover $ 2000 as indemnity for the loss of the sight of both eyes, resulting, it was alleged, from an accidental injury sustained on January 1 1905. The defense of the company was that plaintiff's loss of sight was due to an injury received in October, 1904 and that this injury was a sole or contributing cause of the loss of sight of one or both eyes. It was also alleged that the warranties in plaintiff's application for insurance were false, and, further, that the required notice of the injury was not given. In the reply it was alleged that there had been waivers of some of the conditions of the contract of insurance. Testimony was introduced tending to show that plaintiff lost the sight of his eyes from the injury of January 1, 1905, and there was a great deal of testimony in behalf of the defendant to the effect that the loss was occasioned, in whole or in part, by the October injury, which was sustained before the policy was issued. In charging the jury the following instructions were given:

"(1) The defendant issued an insurance policy to the plaintiff, on the 20th day of December, 1904, by the terms of which it agreed to pay the plaintiff the sum of $ 250 if, solely by external, violent and accidental means, the irrecoverable loss of the sight of one eye shall result to the plaintiff within ninety days; and if, within the same time and by the same means, the irrecoverable loss of the sight of both eyes shall so result, the defendant agreed to pay the plaintiff the sum of $ 2000. In consideration of the issuance of the insurance policy sued on, the plaintiff agreed to pay the defendant the sum of $ 25. Most of the questions arising from the evidence are questions of law, which have been settled by the court, and so that you will not be confused by these legal questions you will confine your deliberations to determining the questions of fact presented to you in the following instructions:

"(2) If, before the 20th day of December, 1904, the plaintiff received an injury to his right eye, which totally destroyed the sight of said eye, then he cannot recover any damages from the defendant by reason of losing the sight of his right eye; and if he has lost the sight of his left eye by reason of an injury to his right eye received by him before the 20th of December, 1904, then he cannot recover any damages from the defendant for the loss of the sight of his left eye.

"(3) On the other hand, if, before the 20th day of December, 1904, the plaintiff did not receive an injury to his right eye of sufficient force and severity to destroy the sight of his right eye, and on said day he had the sight of his right eye, and on the first day of January, 1905, received an external, violent and accidental injury to his right eye, whereby he lost, irrecoverably, the sight of his right eye as the result of an external, violent and accidental injury received by him on the first day of January, 1905, within ninety days from that date, then he is entitled to a verdict against the defendant for the sum of $ 270.12; and if, within ninety days from the first day of January, 1905, and after the plaintiff lost, irrecoverably, the sight of his right eye he also lost irrecoverably the sight of his left eye, as the result of an external, violent and accidental injury to his right eye on the first day of January, 1905, then he is entitled to a verdict against the defendant for the sum of $ 2142.87.

"(4) If the plaintiff did not, on the first day of January, 1905, receive an external, violent and accidental injury to his right eye, or if, on the first day of January, 1905, the plaintiff did receive an external, violent and accidental injury to his right eye, and the irrecoverable loss of the sight of his right eye did not result from said injury within ninety days from said date, then in either of such cases, you cannot render a verdict for the plaintiff and against the defendant for the loss of the sight of his right eye; and if the plaintiff did not lose, irrecoverably, the sight of his left eye within ninety days from the first day of January, 1905, as the result of an external, violent and accidental injury to his right eye, received by him on the first day of January, 1905, then he is not entitled to any verdict against the defendant for the loss of the sight of his left eye; and it is only in case the plaintiff has lost, irrecoverably, the sight of both eyes, as the result, within ninety days, of an external, violent and accidental injury received by the plaintiff on the first day of January, 1905, that he would be entitled to a verdict against the defendant for the sum of $ 2142.87.

"(5) The burden of proof is upon the plaintiff to establish to your satisfaction, by the preponderance of all the evidence, that on the 15th day of December, 1904, he enjoyed the sight of both his eyes, and that on the first day of January, 1905, the irrecoverable loss of the sight of one or both of his eyes was caused solely by external, violent and accidental means, within ninety days from that date; and if the evidence upon such matters is evenly balanced, or if it preponderates or weighs more heavily against the truth or existence of said fact, then the plaintiff cannot recover, and your verdict should be for the defendant."

The remaining instructions had reference to rules for determining the credibility of witnesses and the weight of the evidence. The trial resulted in a verdict in favor of the plaintiff for $ 2142.87. The insurance company complains.

Judgment reversed and cause remanded for new trial.

SYLLABUS

SYLLABUS BY THE COURT.

1. ACCIDENT INSURANCE--Defenses of Prior Accident and False Warranties Improperly Withheld from Jury. In an action on a policy which insured plaintiff against the effects of bodily injuries sustained during the term of the policy and caused solely through external, violent and accidental means, and wherein it was stipulated that a certain indemnity should be paid if the irrecoverable loss of the sight of both his eyes should result from such injuries independently of all other causes, and that the policy did not cover anything of which the sole or secondary or contributory cause is, or which occurs while the insured is affected by or under the influence of, bodily infirmity, where the plaintiff averred that he lost his sight by reason of an injury sustained at a certain time, and where one of the defenses of the insurance company was that an injury received long before that time, and prior to the issuance of the policy, contributed to, if it did not wholly cause, the blindness of defendant, and where testimony was produced by defendant tending to support that defense, as well as another defense to the effect that the warranties upon which the policy was issued were false, it was the duty of the trial court to submit these questions to the jury.

2. PRACTICE, DISTRICT COURT-- Instructions. In instructing the jury the court should not restrict or ignore any of the issues formed by the...