Page:The Green Bag (1889–1914), Volume 05.pdf/116

Rh squares of the tomb. Colbert & Kirtley, Real-Estate Agents, Fredericksburgli, Va.' The plaintiffs, Colbert & Kirtley, had printed and circulated in 2,000 atrocious handbills, a false statement, known to them to be abso lutely and positively false, obviously as a part of their predication for their suit against Shepherd for damages for his refusal to sell and convey to them (his agents), with warranty of title, what he did not own and had never claimed, and what the record and common fame of the country explicitly informed them he had no title what ever to. ... "The record shows the indignant outburst of repro bation with which the citizens of Fredericksburgh, in public meeting, denounced the outrage upon public sensi bility by advertising to sell at public outcry the grave of Mrs. Washington, and the action of the City Council, de claring the proposal to be ' a scandalous reflection upon a civilized Christian community. . . . "Without a further recital of the details of this horrid transaction, — stamped all over with the fraud, false pre tense, and deceit of the plaintiffs in error, — we are of opinion that upon the pleadings and evidence in the record, the verdict of the jury is plainly right, and that the Circuit Court of Fredericksburgh did not err in refusing to set the verdict aside, and in entering judgment thereon." THE CASE OF POLYPHEMUS. — Bawden v. London, etc. Assurance Company, English Court of Appeal, 2 Q. B. Div. (1892) 534, is a very amusing case. The headnote is as follows : — "B. effected an insurance with the defendant company through their agent against accidental injury. The pro posal for the insurance contained a statement by the as sured that he had no physical infirmity, and that there were no circumstances that rendered him peculiarly liable to accidents, and it was agreed that the proposal should form the basis of the contract between him and the com pany. By the terms of the policy the company agreed to pay the insured £500 on permanent total disablement, and ¿250 on permanent partial disablement, — the policy stat ing that by permanent total disablement was meant, inter alia, ' the complete and irrecoverable loss of sight to both eyes,' and by permanent partial disablement was meant, inter alia, ' the'complete and irrecoverable loss of sight in one eye.' At the time when he signed the proposal for the insurance the insured had lost the sight of one eye, a fact of which the defendants' agent was aware, though he did not communicate it to the defendants. The assured during the currency of the policy met with an accident which resulted in the complete loss of sight in his other eye, so that he became permanently blind, ffeld, that it must be taken, first, that the assured had sustained a com plete loss of sight to both eyes within the meaning of the policy; secondly, that the knowledge of the defendants' agent was, under the circumstances, the knowledge of the defendants, and that they were liable on the policy for ¿500." Lord Esher, M. R.. after laying it down that the knowledge of the agent was imputable to the com pany, observed : —

"Quin then having authority to negotiate and settle the terms of a proposal, what happened? He went to a man who had only one eye, and persuaded him to make a proposal to the company, which the company might then cither accept or reject. He negotiated and settled the terms of the proposal. He saw that the man had only one eye. The proposal must be construed as having been ne gotiated and settled by the agent with a one-eyed man. In that sense the knowledge of the agent was the knowledge of the company. The policy was upon a printed form which contained general words applicable to more than one state of circumstances, and we have to apply those words to the particular circumstances of this case. When the policy says that permanent total disablement means ' the complete and irrecoverable loss of sight in both eyes,' it must mean that the assured is to lose the sight of both eyes by an accident after the policy has been granted. The contract was entered into with a one-eyed man, and in such case the words must mean that he is to be rendered totally blind by the accident. That indeed would be the meaning in the case of a man who had two eyes. If the accident renders the man totally blind, he is to be paid ¿500 for permanent total disablement. Quin, being the agent of the company to negotiate and settle the terms of the proposal, did so with a one-eyed man. The company accepted the proposal, knowing through their agent that it was made by a one-eyed man, and they issued to him a policy which is binding upon them, as made with a one. eyed man, that they would pay him .¿500 if he by accident totally lost his sight, i. c., the sight of the only eye he had. In my opinion the plaintiff is entitled to recover ^500 for the total loss of sight by the assured as the direct effect of the accident." Lindley, L. J., said : — "The policy must, in my opinion, be treated as if it contained a recital that the assured was a one-eyed man. The ¿500 is to be payable in case of the ' complete and irrecoverable loss of sight in both eyes ' by the assured. If the assured has only one eye to be injured, this must mean the total loss of sight. Within the true meaning of the policy, as applicable to a one-eyed man, I think the plaintiff is entitled to recover ¿500." Kay, L. J., said : — "Then it is said that the plaintiff can recover only for partial, not for total, permanent disablement. But, treat ing the company as knowing that Bawden had only one eye, how ought the policy to be construed? The material words are, ' complete and irrecoverable loss of sight in both eyes; ' and in my opinion, they ought to be con strued as meaning that the company are to pay .£500 in case the assured completely loses his sight by means of an accident. This is what has happened in the present case, and therefore, in my opinion, the plaintiff is entitled to recover .£500." Loss OF A FOOT. — In Stever v. People's Mut. Ace. Ins. Ass'n of Pittsburgh, Supreme Court of Pennsylvania. July 13, 1892, it was held that one can not, under an accident policy, recover as for the loss of a foot, where by reason of an injury to his back he