Seater v. Penn Mutual Life Insurance , 176 Or. 542 ( 1945 )

Petition for rehearing denied June 19, 1945 ON PETITION FOR REHEARING (159 P.2d 826) The plaintiff-respondent has petitioned for a rehearing, upon the grounds that the court erred in holding (1) that it cannot be assumed, merely because Mrs. Seater fell, that the fall was an accident, (2) that submission of the case to the jury was an invitation to guesswork, and (3) that there was insufficient evidence of the cause of death by accidental means to submit the case to the jury.

It will be remembered that the policies of insurance upon which the action was based provided that the insurer would pay double indemnity if the death of the insured should result solely from bodily injuries effected directly and exclusively by external, violent, and accidental means, but that such double indemnity would not be payable if death resulted directly or indirectly from illness or disease of any kind, or from physical or mental infirmity. The complaint alleged that the insured died from bodily injuries within the terms of the policies. On these matters the plaintiff had the burden of proof.

Respondent contends that there is a presumption that the deceased did not voluntarily inflict the injury upon herself, and that the injury was due to an accident. We assume that what is meant by this contention is that, upon proof that the deceased died of bodily injuries effected directly and exclusively by external and violent means, it might be inferred by the triers of the fact that such injuries were the result of an accidental cause. We have considered the cases cited by respondent in support of his petition, and we think that, so far as they are pertinent, they are distinguishable from the case at bar.

Beimdiek v. New York Life Ins. Co., (Mo.App.)183 S.W.2d 379, was an action for double indemnity benefits under two life insurance policies. The petition alleged that insured died from a fractured hip, the result of an accidental fall sustained by him in his bedroom. Insured was sixty-nine years of age and had been a salesman for an oil company. He died May 15, 1942. Up until 1940 or part of 1941, he had been quite active in his work. In the latter part of 1941, however, his activities became curtailed because of physical disabilities which rendered walking difficult. On the occasion of his fall there were no eye-witnesses, but his wife testified that she "heard a loud bump or thud". She went immediately into his bedroom and found insured sitting on the floor with his back against a wardrobe. In answer to her inquiry as to what had happened, he stated that he had tried to grab the footboard of the bed and had missed it. There was testimony that, beginning in October, 1940, he had experienced a little trouble with his legs, which resulted in a "sort of a slow, little undecided" manner of walking. The medical evidence indicated that he was afflicted with a progressive lateral sclerosis of the spine, and degenerative changes in the spinal cord due to arteriosclerosis. He suffered a fractured hip in the fall, and died ten days later, apparently of "terminal" pneumonia.

We think that the distinguishing features between the Beimdiek case and the one before us are these: While Beimdiek had arteriosclerosis, which apparently caused him to walk slowly and in an undecided or hesitant manner, there was nothing in his case history to indicate that, because of his physical ailments, he was in the habit of falling or had ever fallen. Moreover, the fact that he inferentially attributed his falling to his having unsuccessfully tried to grab the footboard of the bed, was some evidence that his fall was accidental. In the case at bar, however, the evidence showed that Mrs. Seater, during the period while she was confined in the State Hospital, was subject to falls, and, therefore, that her falling upon the occasion when she broke her hip was not an unexpected occurrence but rather one that might reasonably have been expected to happen.

Wilkinson v. Aetna Life Ins. Co., 240 Ill. 205,88 N.E. 550, 25 L.R.A. (N.S.) 1256, 130 Am. St. Rep. 269, is cited to the effect that, where the evidence shows that an insured has suffered an injury which has caused death, and there is no proof in the record from which it can be determined whether the injury was accidental or self-inflicted, the presumption is that it was accidental. This, upon the facts of the case, was an application of the so-called presumption against suicide, which is available and is frequently made use of in insurance cases in which the insurer defends upon the ground that the insured committed suicide. (See Wyckoff v. Mutual Life Ins. Co.,173 Or. 592, 147 P.2d 227.) Other cases cited by respondent which are illustrative of this presumption are Jenkin v. Pacific Mut.Life Ins. Co., 131 Cal. 121, 63 P. 180; Travellers' Ins. Co. v.M'Conkey, 127 U.S. 661, 8 S. Ct. 1360, 32 L. Ed. 308; New YorkLife Ins. Co. v. Gamer, 303 U.S. 161, 58 S. Ct. 500,82 L. Ed. 726, 114 A.L.R. 1218; Ryan v. Met. Life Ins. Co., 206 Minn. 562, 289 N.W. 557. Such cases are not, in our opinion, in point under the circumstances of the case at bar.

The respondent cites Kundiger v. Metropolitan Life Ins. Co.,218 Minn. 273, 15 N.W.2d 487. That was an action for double indemnity under two industrial life insurance policies. The insured was fifty-one years of age and had been employed for several years as a laborer in a paper-mill. His work involved the trucking of heavy bales of paper and the loading and unloading of box cars. He was afflicted with leukemia, an incurable disease. Notwithstanding his affliction, however, he continued in his employment until a week before his death. He arrived home one night apparently suffering considerable pain and, instead of eating lunch, as was his custom, went to bed immediately. During the night he awakened his wife, who saw that his neck was swollen and that its left side was black and blue. In the morning she observed that the swelling had considerably increased, that the black and blue area was larger in extent, that insured's neck was stiff, that he was unable to move his head, and that he had some difficulty in speaking. He died about a week later. The provisions of the policies with respect to liability for double indemnity were similar to those in the present case. We quote from the opinion of the court:

"Plaintiff was unable to prove when or where her husband sustained the injuries causing his swollen neck, the black and blue marks, or the scratches observed on his body, but such proof was not indispensable. The accidental origin of his injuries will be presumed without proof of a mishap. ``Given death from violence, without more, decision must be that it was accidental.' Ryan v. Metropolitan L. Ins. Co., 206 Minn. 562, 567, 289 N.W. 557, 560; Konschak v. Equitable L. Assur. Society, 186 Minn. 423, 243 N.W. 691."

Assuming, without deciding, that in a case where the evidence shows that an insured met his death from external violence, "without more", an inference might be drawn that the fatal injury was the result of accidental means, we think that no such inference is permissible from the evidence in the case now before us. In Prudential Ins. Co. v. Van Wey, (Ind.App.)56 N.E.2d 509, cited by respondent, the factual situation was similar to that of the instant case, except that there the insured was perhaps more seriously afflicted with physical ailments than was Mrs. Seater. This was a decision of the appellate court of Indiana. The insured had suffered from chronic nephritis, hypertension, and coronary sclerosis. She was sixty-two years of age, and was more or less bedfast. On the occasion of her injury, she had arisen from her bed and entered her bathroom. The level of the bathroom floor was one step higher than that of the bedroom floor. She fell in the bathroom, near the step. No one saw her fall, but her daughter heard the noise and went to her assistance. The court, relying upon a statement in 29 Am. Jur., Insurance, section 1443, stated it to be the general rule "that in an action on a policy insuring against death caused solely by external, violent, and accidental means, * * * where death by unexplained, violent, and external means is established, a presumption is thereby created or prima facie proof is thereby made of the fact that the injuries were accidental, without direct and positive testimony on that point, since the law will not presume that the injuries were inflicted intentionally by the deceased or by some other person." It held that, there having been no direct or positive evidence in explanation of the fall, it was bound in law to conclude that the fall was accidental. The case would be authority for respondent here but for the fact that it was reversed by the Indiana Supreme Court upon the very holding upon which respondent relies. (Prudential Ins. Co. v. Van Wey,59 N.E.2d 721.) Because the reasoning of the supreme court lends support to our holding herein, we quote from the opinion as follows:

"While ultimate facts may be established by direct or circumstantial evidence and by inferences properly drawn from such evidence, yet neither courts nor juries have any right to presume any fact in issue which they are called upon to determine. Kaiser v. Happel, 1941, 219 Ind. 28, 33, 36 N.E.2d 784; Baltimore Ohio R. Co. v. Reyher Adm'x, et al., 1939, 216 Ind. 545, 549, 550, 551, 24 N.E.2d 284. Therefore, the decision in this case cannot be predicated on mere presumption that because there was a fall that such fall was effected through accidental means.

"That ultimate fact must be established by evidence or proper inferences to be drawn from evidence. A finding as to this fact cannot be based upon conjecture, speculation or guess. Orey v. Mutual Life Insurance Company of New York, 1939, 215 Ind. 305, 309, 19 N.E.2d 547; J.C. Penney, Inc., v. Kellermeyer, 1939, 107 Ind. App. 253, 264, 19 N.E.2d 882, 22 N.E.2d 899, and the mere possibility that it may be true will not properly sustain an inference that it is true. New York Central R. Co. v. Green, Adm'x, 1938, 105 Ind. App. 488, 496, 497, 15 N.E.2d 748; Moorman Manufacturing Company et al. v. Barker, 1941, 110 Ind. App. 648, 659, 40 N.E.2d 348.

"In this case the direct evidence simply shows a woman who was in such state of health that she was weak and subject to dizzy spells and was tottery when she walked. This woman went to her bathroom, which involved walking up a step or two, and fell. All that the direct evidence shows is that she fell and broke her hip. There was no direct evidence of what caused her fall.

"The circumstantial evidence is such that the court could not properly draw the inference either that the fall was caused by dizziness and her tottery physical condition or that it was caused by slipping or stumbling or anything else that might fall within the definition of accidental means. To choose either of these alternatives would mean resort to speculation and conjecture."

Our statement, that it cannot be assumed, merely because Mrs. Seater fell, that the fall was an accident, must be read in the light of its context, and not as an isolated comment. The context was that the evidence indicated that it was probable that Mrs. Seater's mental or physical ailments, or both, were the cause of her fall; that she was seriously deranged mentally, and was afflicted with a considerable degree of generalized arteriosclerosis; and that, while she was in the hospital, she frequently fell. We are satisfied that our statement was warranted, and was a correct exposition of the law as applied to the facts in evidence.

The two remaining grounds assigned upon the petition are characterized by petitioner's counsel as following the first assigned ground in logical sequence. We agree that they do so, and, having found against respondent upon the first ground, we are constrained logically to find against him upon the other grounds also.

It is interesting to note that respondent, in oral argument before this court, relied exclusively upon the death certificate for proof that Mrs. Seater's fall was accidental. This is apparent from the following colloquy between court and counsel. "Judge Bailey: Is there any testimony other than this certificate that the fall was accidental? Mr. Galton: No, we either stand orfall on the certificate."

The petition for rehearing is denied.