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District Court of Appeal, Second District, Division 1, California.


Civ. 12280.

Decided: April 19, 1941

Joseph Brenner, of Los Angeles, for appellant. Paul Nourse, of Los Angeles, for respondent.

Respondent has petitioned for a rehearing of the cause herein, contending that the trial court made a proper finding of ultimate fact upon the issue of the loss of sight of appellant's eye and that this court has erred in holding said finding a mere conclusion of law and in holding that the trial court had failed to make a proper finding of fact upon the issue.

Respondent argues that the interpretation by the trial court of the meaning of the phrase “entire loss of sight of one eye” did not present a question of fact but purely one of law, and that it was only necessary that the court find the ultimate facts; that the court was not required to make any finding upon the issue of law as to the meaning of the policy but could reflect that finding in its findings of the ultimate fact. With this proposition there is no disagreement. The difficulty in the instant case, however, is that, in the light of the record presented and the evidence adduced, it is impossible to determine upon what theory the trial court made its finding as to loss of sight. In which regard, it should be pointed out that respondent, in its answer, affirmatively alleged in one paragraph that “the plaintiff was totally without any practical use or sight in his right eye”; and in the paragraph of its answer immediately following, respondent alleged that “the plaintiff did sustain an injury which then resulted in the irrecoverable and entire loss of sight of his right eye”. Both such allegations are of ultimate fact; but it is apparent that in order to prove such allegations, the latter requires different proof than the former. The distinction between such allegations has already been made in the original opinion herein, where it is said: “If an individual is able to see at all it cannot be said as a matter of fact that the entire sight of the eye is lost, although it might well be concluded as a matter of law that such individual would be entitled to recover indemnity as for an entire loss, because the vision had been so greatly impaired.” 111 P.2d 353, 354. Furthermore, at the trial, respondent's counsel indicated to the court that it was respondent's contention that in order to be of practical use the injured eye must be of some practical use and benefit in the occupation in which the plaintiff was used to working. As may be seen from the original opinion herein, such a contention does not correctly reflect the law on the subject. From the finding of the court upon the issue of loss of sight, it is impossible to say that the trial court in considering the evidence did not adopt the view advanced by respondent, and, if this were so, the finding was based upon an erroneous theory of law. From all that appears herein, the finding in question might have been based upon any one of three grounds: 1. That appellant was in fact totally blind in the injured eye; 2. That appellant had lost the practical use and benefit of the eye in his occupation; and 3. That appellant had lost the practical use and benefit of the eye in his daily life. It was for the trial court in making its findings to set forth the ultimate facts with sufficient particularity as to show the grounds upon which its judgment rested. Frascona v. Los Angeles Railway Corp., 48 Cal.App. 135, at 137, 138, 191 P. 968.

The pleadings herein presented two questions of ultimate fact to be answered by the trial court; first: Had appellant actually lost the entire sight of the eye; and, second: If appellant had not actually lost the entire sight of the eye, had the vision been so greatly impaired as to destroy practical use of the eye? The evidence did not support an affirmative finding upon the first issue, and the trial court failed to make any finding upon the second.

The authorities cited by respondent upon the question stand for no more in that respect than the proposition that findings need be of ultimate fact only and may be couched in the language of the pleadings where the pleadings sufficiently state the ultimate facts. A few of respondent's authorities, notably Miller v. Gusta, 103 Cal.App. 32, 283 P. 946, directly support the view taken by this court and the contentions of appellant.

It may be well to state here, also, that in view of the undisputed evidence of the existence of peripheral vision in the injured eye, whether practical use of the eye has been lost presents a very close question. See Powers v. Motor Wheel Corporation, 252 Mich. 639, 234 N.W. 122, 73 A.L.R. 702. However, where questions of this nature arise, their determination depends so much upon the facts of each individual case that it would create a dangerous and undoubtedly harsh precedent to establish, as a rule of law, that the existence of peripheral vision in every case constituted existence of practical use of eyesight.

The petition for rehearing is denied.


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