This action is based on an accident benefit insurance policy. The plaintiff prevailed in the trial court.
Plaintiff claimed the loss of one of his eyes by an accident. The sole defense is misrepresentation of matters connected with the condition of his eyes when insured and prior to that time, which misrepresentations, defendant contends, were warranted to be true. The certificate contained the following provisions in reference to warranties and representations:
“First. That the statements in the application of said member and his answers in the medical examination, a copy of which appears upon the back hereof and which is hereby made a part of this agreement, are true in every particular, and shall be held to be strict warranties and shall, with the by-laws of this association, form the only basis of this contract and for the liability of the order under this certificate, the same as if fully set forth herein.”
“I further agree that in the event of my having concealed, misrepresented or suppressed any facts as to my personal or family history, as to disease or habits or physical condition or my own condition now or in the past, which shall be found to be essential in considering my risk, the certificate to be issued hereon shall be null and void, at the election of the society is*75suing the same, and in such event I agree to forfeit both such certificate and all payments I shall have made thereon. ’ ’ •
Interpreting the entire provision, we conclude, notwithstanding the positive language in the forepart of the foregoing quotation, that a misrepresentation to be an effectual bar to plaintiff must be one that was “essential” or material to the risk. We must allow some material and substantial force to the words, “which shall be found essential in considering my risk. ’ ’
The plaintiff’s case showed that he was a carpenter and while engaged in his work some foreign substance struck him in the eye in consequence of which it became necessary to take out his eye. The question of whether the representations made by plaintiff to defendant when he took out his insurance was properly and clearly submitted to the jury and we will not disturb the finding.
In Moulor v. Ins. Co., 111 U. S. 335, it was held that when a policy of insurance contains contradictory provisions, or has been so framed as to leave room for construction rendering it doubtful whether the parties-intended the exact truth of the applicant’s statements to be a condition precedent to any binding contract, the court should avoid a construction which would put upon the assured the objection of a warranty.'
The judgment should be affirmed.
All concur.