Church v. Fidelity & Deposit Co.

SHAW, J.

The only point requiring notice in this appeal by defendant from a judgment rendered in favor of plaintiff upon an accident policy issued to him by defendant is whether or not the evidence supports certain findings of the court upon which the judgment is based.

On July 14, 1913, defendant issued to plaintiff, who was a member of the Los Angeles fire department, an accident insurance policy, the express consideration for the issuance of which, other than the premium specified, was “the agreements and statements in the copy of application set forth hereon, which statements the insured makes and warrants to be true by the acceptance of this policy.” This copy of application, to which, however, plaintiff did not attach his signature, contained a statement as follows: “I am in sound condition mentally and physically.” We may dismiss from

[743]

consideration the effect of plaintiff’s failure to sign this so-called application, and concede for the purposes of this case that his acceptance of the policy to which it was attached was the same in effect as though he had signed the same, for the reason that the court upon sufficient evidence found “that plaintiff was in sound condition, mentally and physically, on the fourteenth day of July, 1913, at the time said policy was issued.” The facts connected with the accident as a result of which plaintiff was injured are as follows: It appears from the evidence that on the evening of April 14, 1914, plaintiff was awakened by a fire-alarm, and, in some unexplained manner, fell through the pole-hole used by the firemen as a means of descending from the room occupied by them to the ground floor. As a result of this fall the bone designated as the femur of the right hip was fractured. Plaintiff was taken to the receiving hospital where, shortly after his arrival, he became unconscious, which condition continued for some eight weeks.

The evidence upon which appellant bases its contention that plaintiff was not in sound condition, as found by the court, is that some ten years prior to the time of the issuance of the accident policy, namely, in September, 1904, he, while serving in the fire department, was injured by the falling of a roof, a part of which struck him on the head and, while of insufficient force to knock him down, he was three or four days later, as a result thereof, the subject of a delirious attack. As a remedy for this condition resort was had at the time to a trepanning operation, which afforded immediate relief, and from thence to April 14, 1914, at the time of the injury, indemnity for which is herein sought, there was nothing in plaintiff’s manner, appearance, complaint, or feeling to indicate that his condition was other than sound, both mentally and physically; in other words, his physical and mental condition was absolutely unimpaired by the operation mentioned. Nevertheless defendant insists that the unconscious condition of plaintiff following the fracture of the hip joint occurring in April, 1914, was due, not to such injury, but to the operation in trepanning the skull some ten years prior thereto. And such was the opinion of a medical expert called as a witness on behalf of defendant. As against this testimony, however, was that of plaintiff himself to the effect that since the operation he had never during the intervening time experienced any ill-