Ward v. Standard Acc. Ins. Co.

• Decision Date: 13 February 1929
• Docket Number: No. 3826.,3826.
• Citation: 30 F.2d 328,63 ALR 842
• Parties: WARD v. STANDARD ACC. INS. CO. OF DETROIT, MICH.
• Court: U.S. Court of Appeals — Third Circuit

63 ALR 842, 30 F.2d 328 (1929)

WARD v. STANDARD ACC. INS. CO. OF DETROIT, MICH.

No. 3826.

Circuit Court of Appeals, Third Circuit.

January 4, 1929.

Rehearing Denied February 13, 1929.

Gunnison, Fish, Gifford & Chapin, of Erie, Pa. (Merritt U. Hayden, of Detroit, Mich., of counsel), for appellant.

John B. Brooks, of Erie, Pa., for appellee.

Before BUFFINGTON and WOOLLEY, Circuit Judges, and McVICAR, District Judge.

McVICAR, District Judge.

The policy of the Standard Accident Insurance Company, appellant, insured Hannah Gertrude Ward, appellee, against loss resulting from bodily injuries effected directly, exclusively, and independently of all other causes by the happening of a purely accidental event. Appellee fell in a bathtub injuring her spine and causing a detachment of the retina in her right eye, and the irrecoverable and entire loss of the sight thereof. In an action on the policy, the jury rendered a verdict for appellee upon which judgment was entered. From that judgment this appeal was taken.

Appellant contends that its request for binding instructions should have been sustained for three reasons. These reasons, being the questions involved, will be considered in the order argued. The first is that by reason of misrepresentations by appellee in her application for the policy sued on, the policy was void from its date. The application contained this provision: "I hereby apply for a policy to be based upon the following statements of facts. I understand and agree that the falsity of any statement in this application shall bar the right to recovery if such false statement is made with the intent to deceive or materially affects either the acceptance of the risk or the hazard assumed by the company."

The alleged misrepresentations were the answers to two questions. The first question and answer is: "Is your sight or hearing impaired? No — ordinary use of glasses." The testimony on this point is substantially as follows: Appellee testified that she had nearsightedness at the time she made the application and before that time. Dr. Dennis, an eye specialist, called on her behalf testified that appellee had always had an eye that was peculiarly susceptible to a detachment of the retina upon the slightest injury or strain; that she was nearsighted; and that she had evidence of former iritis. Dr. Honloose stated in the proofs of loss that she admitted to him that she had trouble in her eyes when a child. The answer of the appellee implies that her sight was not normal; that her vision was impaired so that she had to use glasses; and that she had to make use thereof to the extent of the person who makes ordinary use of glasses. That she was nearsighted, that the retina in her right eye was subject to easy detachment, that she formerly had iritis, and that she had trouble with her eyes when a child, indicate an impairment of the vision; but the court could not say, as a matter of law, that her answer was false, or that it was made with the intention to deceive, or that it materially affected the acceptance of the risk or the hazard assumed.

The second question and answer is: "State what medical or surgical attention you have received within the past five years. None." There was testimony that she had consulted Dr. Dennis, an eye specialist, to have her glasses looked over, to see if they were correct, and that she had had her lenses checked up every two or three years. Considering the ordinary understanding of the meaning of "medical or surgical attention," or the understanding which could be fairly attributed to a nurse, it cannot be said that this statement, made by her, was...