Leon v. Pac. Mut. Life Ins. Co. of Cal.

ANGELLOTTI, C. J.

This is an action on a policy of accident insurance. In accord with the verdict of the jury plaintiff was given judgment for three hundred dollars, said judgment being entered August 8, 1919. Subsequently defendant gave notice of intention to move for new trial,

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which, so far as the record shows, was never acted upon. Plaintiff, subsequently to such notice of motion, gave notice of a motion to vacate the judgment for three hundred dollars, based on the verdict of the jury, and to enter a judgment for $640. Over the objection of defendant this motion was granted by order made September 29, 1919'. Defendant appeals both from the judgment as entered August 8, 1919, and from the order or judgment, made September 29, 1919, whereby plaintiff was given judgment for $640.

Plaintiff’s action, as shown by his complaint, was for three hundred dollars alleged to be due under the policy for the loss, by reason of the accident, of the sight of one eye, and eighty dollars per month for eight months, because of inability by reason of the accident to work at his occupation during that time. This was his theory throughout the trial and until after the judgment of August 8, 1919. He never consented to waive his claim for the three hundred dollars for loss of sight of one eye until when, after the entry of judgment, the trial judge decided that he could not have both such three hundred dollars and a payment for loss of time. The defendant by its answer denied that plaintiff’s loss of sight of one eye was caused by the accident, claiming that the same was due to a senile cataract of long standing. It further set up as a defense falsity of the statement in plaintiff’s application with relation to his" power of vision. Upon these issues the case was tried, with a jury. The jury found a general verdict for plaintiff for three hundred dollars, for the loss of the sight of the eye. It also, as a part of its verdict, answered four special questions submitted to it, the answers being substantially that the injury was due to “a blow of a bolt by his fellow-workman, ’ ’ that there was no senile cataract at the time plaintiff made his application for a policy, that the

“concussion

cataract” was the sole cause of the loss of sight in plaintiff’s left eye, and that from the date of the accident (September 20, 1918) to the date of the verdict (August 7, 1919) plaintiff was totally and continuously disabled from the performance of all duty pertaining to his occupation. It seems that upon the trial defendant claimed that under the terms of the policy plaintiff could not recover any monthly indemnity in’ addition to the three hundred dollars