No. 858 | Utah | Nov 4, 1897
At the trial of this cause, the defendant objected to the introduction of any evidence, on the ground that the amended complaint did not state a cause of action. The objection was overruled, and the action of the court is ¿assigned as error, and raises the most important question in the case, which is whether the plaintiff has a right to recover, under the defendant’s by-law in force at the time he received the injury of which he complains, the same having been amended before the cause of action became complete. The by-law in question reads as follows: “Any member, while engaged in any lawful occupation, receiving bodily injuries, which alone shall cause * * * total and permanent loss of eyesight, shall receive the full amount of his policy. In case of loss of eyesight, the certificate must not be made out in less than one year, and must be signed by two experienced oculists and surgeons, and in any case the association may designate one of the medical examiners.” This by-law was amended on May 26, 1894, so that the 'expression “total and permanent loss of eyesight” was made to read “total and permanent loss of one or both eyes.” It appears from the evidence, and the court so found, that in June, 1893, the plaintiff, who was a locomotive engineer, accidentally, while engaged in a lawful employment, fell into a pit, and received an injury on the bead, which immediately
This case was before us on a former occasion on appeal, and is reported in 14 Utah 458" court="Utah" date_filed="1897-03-08" href="https://app.midpage.ai/document/maynard-v-locomotive-engineers-mutual-life--accident-insurance-8654048?utm_source=webapp" opinion_id="8654048">14 Utah 458. We there held that the amended by-law, on which the action was then founded, was not by its terms retroactive, and that, considered by itself, it did not include a case like the one at bar. The case was reversed on the point that the judgment of the court.was not supported by the findings of fact, the pleading not responding to such findings; but, as we were not satisfied that the plaintiff could not ultimately recover if the complaint were amended so as to present the issues suggested by the record, a new trial was ordered, and leave granted to amend the pleading. The complaint was thereupon amended, and now sets out the original by-law above quoted, as well as its amendment, and we are of the opinion that the plaintiff is em titled to recover under the former by-law, being the one in force at the time he received the injury. The right of recovery in such a case as this appears to be within the fair intendment of its provisions, and the amendment simply makes their true meaning more apparent. The by-law does not provide that the insured will not receive the amount of his policy unless the injuries are such as to cause the loss of the sight of both eyes. There is'no express provision, as will be observed, limiting the insur-
It is also contended for the appellant that it was essential to plaintiff’s recovery that he should have alleged that he received a “bodily” injury. It is alleged that “this 'plaintiff received an injury while engaged in a lawful vocation, which caused the total and permanent loss of his right eye.” We think this allegation sufficient to- withstand the objection that the complaint did not state a cause of action. At most, it is merely indefinite or uncertain, a.s not stating the particular injury; and defects of this character must be taken advantage of before judgment by proper pleading, or they will be waived. The subject of defective pleading was considered in the case of Mangum v. Mining Co., 15 Utah 535, to which we refer for a more extended discussion on this point. Where, as in this case, the complaint states a cause of action-in general terms, the objection that the allegations are indefinite or uncertain or ambiguous cannot avail the objector after judgment, when the objection was not made in the proper way before judgment.
It is further insisted that the court erred in permitting the plaintiff, over the objection of the defendant, to answer the following question: “Was the loss of eyesight caused by the injury?” This question was subject to the objection that it was calling for a conclusion, and should not have been permitted to be answered; but in view of the facts that the case was tried before the court Avithout a jury, and that, regardless of the answer to the question, the evidence was sufficient for the court to en
There are several questions presented in the record respecting the finding of fact and the failure to make such findings, but, upon examination of each of them, we perceive no reversible error. The facts found are ample to sustain the judgment, and appear to be fair deductions from the evidence, and made on all material issues properly raised in the pleadings. If other facts had been found, they would necessarily have been prejudicial to the appellant. In Groome v. Ogden City Corp., 10 Utah 54" court="Utah" date_filed="1894-06-29" href="https://app.midpage.ai/document/groome-v-ogden-city-corp-8653755?utm_source=webapp" opinion_id="8653755">10 Utah 54, this court held that it was not error for the court to fail to make findings on immaterial issues, and that even on material issues a failure to find facts was not reversible error if, when found, they must necessarily have been adverse to the appellant, and when those already found were sufficient to support the judgment. We find no reversible error in the record. The judgment is affirmed.