Clark v. Standard Accident Insurance

DORAN, J. The plaintiff in an action for indemnity under a policy of accident insurance appeals from a judgment rendered in favor of the defendant insurer, after trial by the court sitting without a jury.

The injury for which indemnity is sought under the policy was sustained while appellant was riding in an automobile, and consisted in the detachment of the retina of appellant’s right eye, resulting in a decided impairment of the vision of that eye, as will hereinafter appear. Respondent admits the accidental injury and the only dispute here involved has to do with the nature and extent of the resulting loss of sight and the provisions of the policy as applied thereto. It is respondent’s contention that appellant suffered the “irrecoverable and entire loss of sight of one eye” within the meaning of the policy as the applicable terms therein have been judicially construed. Prior to the commencement of this action respondent had offered to accept liability under that provision of the policy covering such a loss, which liability consisted of the obligation to pay the principal sum of the policy, namely, $1500. However, the instant action was brought to recover weekly indemnity payments under the second article of the policy providing for other accidental injuries not otherwise specifically enumerated and which disabled and prevented the insured from attending to the duties of his occupation. Judgment on that basis was demanded in the total sum of $3,370 to cover such payments to the date of the trial. The action is based upon appellant’s contention that the injury to the eye was less than irrecoverable and entire loss of sight and therefore indemnity applied under the second article of the policy providing for weekly indemnity during the period of disability rather than under the first article providing for lump sum payments for certain enumerated losses, loss of sight as above defined among them.

There is no material conflict in the evidence as to the sight in appellant’s injured eye. This evidence consisted largely of demonstrations of appellant’s use of the eye in the courtroom and of expert testimony by qualified physicians. It appears therefrom that by the use of the injured eye alone, appellant could read printed letters or words of a size comparable to that of the large newspaper headlines, could exercise a fair degree of color perception and could distinguish [566]certain geometrical figures and similar objects mounted on a white background. The demonstrations of sight were made through the use of various lenses upon the eye and appellant’s success in the tests given, and the difficulty encountered in the use of the eye, varied according to conditions. The expert testimony showed appellant to be possessed of peripheral vision, enabling him to distinguish objects and to read as demonstrated. The term “peripheral vision” does not mean that appellant only had side vision, but that he could see out of all but the center portion of the eye. In other words, appellant could see both directly in front and to the side by the use of the injured eye, but the sight out of that eye was obtained through the outer or peripheral portion around the center. According to the testimony of one of the experts, central vision covers an area of half an inch in diameter. The expert testimony also indicated a possibility of further improvement in appellant’s vision, though the chances thereof appeared uncertain. There was also expert testimony tending to show that peripheral vision such as possessed by appellant could be of some practical use in avoiding collision with objects. While sight appeared greatly impaired, the evidence as a whole established uncontrovertibly that appellant possessed vision in the injured eye to a degree greater than mere perception of light and darkness.