Zuckerman v. Underwriters at Lloyd's, London

• Decision Date: 12 March 1954
• Citation: 42 Cal.2d 460,267 P.2d 777
• Court: California Supreme Court
• Parties: ZUCKERMAN et al. v. UNDERWRITERS AT LLOYD'S, LONDON. L. A. 22668.

Page 777

267 P.2d 777

42 Cal.2d 460

ZUCKERMAN et al. v. UNDERWRITERS AT LLOYD'S, LONDON.

L. A. 22668.

Supreme Court of California, In Bank.

March 12, 1954.

Rehearing Denied April 7, 1954.

Francis J. Gabel and Henry F. Walker, Los Angeles, for appellants.

Adams, Duque & Hazeltine, Los Anageles, Waller Taylor, II, Pasadena, for respondent.

EDMONDS, Justice.

Upon trial of the action brought by the beneficiaries under two accident insurance policies upon the life of George H. Francis, a jury returned verdicts in favor of the insurer. As grounds for reversal of the judgment denying recovery, it is contended that certain instructions to the jury were prejudicially erroneous.

One of the policies sued upon insured the life of Francis in the amount of $100,000 for the benefit of the law firm of which he was a member. A second policy for $75,000 provided that the insurance should be payable to the law firm and to James H. Francis, his brother.

The answer of the insurer admitted that the policies were in effect at the time of the death of Francis but denied liability thereunder. As separate and affirmative defenses, it alleged that death was caused by (1) disease or natural causes, and (2) intentional self-injury.

The evidence shows that Francis, a resident of Los Angeles, went to Mexico on a fishing trip. As the result of a storm, the boat used by him and several others in the party was unable to return to the mainland and the men spent a cold and uncomfortable night on an island. The next day Francis complained about not feeling well. He kept himself wrapped in blankets and there is considerable evidence that he appeared to have frequent chills. However, Stilbert, one of the men who accompanied Francis, testified that at no time did Francis appear to him to be ill.

The record includes the testimony that Francis did not go to his office on the three days following his return to Los Angeles. However, Fred Paulsen testified that he and Francis were together at the latter's office on one of those days for one or two hours. He said that Francis 'appeared to be in good health, so far as I know'. Other testimony is that during those three days Francis was suffering from a cold, evidenced by the symptoms of sneezing and coughing. On the third day, Francis consulted a physician and asked him to prescribe for a cold. Pursuant to the physician's advice, Francis obtained aureomycin and sleeping tablets.

Francis then decided that his condition would improve if he visited his brother who lived on the desert. He made arrangements to drive to Victorville and meet a friend who would accompany him the rest of the way to his brother's home. Late on the following afternoon, Francis parked his car in a picnic ground near Victorville. Two days later, he was discovered in the car, dead. The car was facing south and all of the windows were closed. Francis was lying in the back seat in a supine position with his head to the east on a small pillow. His left arm was down off the seat and the right arm was lying across his body. His collar was buttoned and his tie intact, as were all of his clothes. As to his general appearance, the deputy sheriff who investigated testified that 'he was lying there in a peaceful manner'. The keys to the car were in Francis' side coat pocket.

An autopsy, not requested by any of the parties, was performed by county autopsy surgeon Baird on the following Monday. Two days later the body was cremated. The record does not show at whose order this was done. Some seven to 12 days after the death of Francis, Norman Pittluck, an attorney employed by the law firm, discovered the insurance policies and informed Arthur E. Edmunds, one of the partners, of their terms.

Eleven days after the body of Francis was discovered, Underwriters was notified of the death and claim filed for payment. Underwriters, pursuant to the provisions of the policies, requested permission to perform a post-mortem examination. The insurer was informed on April 25th that the body had been cremated.

The testimony as to the cause of death is conflicting and extremely technical. The certificate of death, signed by Dr. Baird, states:

'Disease or condition directly leading to death:

'(A) Bronchopneumonia.

'Antecedent Causes. Morbid conditions, if any giving rise to the above cause (A) stating the underlying cause last:

'Due to (B) Edema of Brain. Due To (C) Acute Alcoholism.'

Dr. Baird testified that he put 'acute alcoholism' on the death certificate because an acquaintance of the deceased informed him that Francis was an alcoholic drinker. According to Dr. Baird, his diagnosis of edema of the brain was based solely on the statement made to him that Francis used intoxicants. Edema of the brain, said Dr. Baird, results either from alcohol or injury 'and in this case there was no evidence of injury'. His examination was made by 'gross' methods, that is, what he could see with his eyes and feel with his hands, in contradistinction to microscopic study.

An electrocardiographic tracting made for Francis about two years before his death showed that he then had a normal heart for a man of his age. Underwriters' medical expert was of the opinion that Francis had suffered a 'first degree heart block'.

Flossie Francis, the divorced wife of the insured, remained on friendly terms with him until his death. She testified that he was a heavy drinker and an habitual user of sleeping pills. According to her testimony, he did not look well during the last months before his death and complained of pain, especially in his shoulder. Other witnesses described Francis as 'a heavy but sociable drinker', and were of the opinion that he did not appear to be well. However, several friends of the deceased told the jury he was in the best of health and rarely drank, never to excess.

The medical expert for the beneficiaries, in response to a hypothetical question, testified that the cause of death was bronchial pneumonia, and that there 'is nothing in the history of this case or in the autopsy findings which show that alcohol was a causative factor in any way whatsoever'. A physician called by the insurer also was asked a hypothetical question. He said that an accurate diagnosis could not be made without microscopic studies. In his opinion, Francis did not die of broncho-pneumonia. 'I don't believe this man died of pneumonia, because if you have ever seen a patient die of pneumonia you have seen a patient who gasps for breath * * * it would be very very unique for a man to be lying (supine) * * * in a car with his tie in place, with the upper button of his shirt unopened, lying calmly with the windows shoved up. I think most people with pneumonia cry for air, they want the window open, they want the tie off, they want no hindrance to respiration.' He gave as his opinion that the primary cause of death was a 'condition which led to circulatory collapse and edema and congestion of the lung'. As his reasons for that opinion he stated, 'Primarily it occurs, of course, in acute heart failure * * * (it) is the classical finding of all these many people who die from an overdose of sleeping pills. Many chemical substances, among which is alcohol * * * I could run through a list of many poisons which can do it.'

Except for the amounts of the insurance, the policies are identical in form. In part, they provide as follows:

'A. Insuring Clause: If at any time during the currency of this certificate the Assured shall sustain any accidental bodily injury * * * caused by * * * Accident, as hereinafter defined which shall, solely and independently of any other cause within six (6) calendar months from the date of the accident causing such bodily injury, occasion the disablement of the Assured * * * the Underwriters will pay to the Assured, his Executors, Administrators, or Assigns (or in case such bodily injury shall occasion the death of the Assured, to the Beneficiary or Beneficiaries named herein) * * *:

'E. Definitions: It is understood and agreed that:

'2. 'Bodily Injury Which Shall Occasion Death' includes, in addition to the coverage herein provided, death by exposure to the elements or physical exhaustion or drowning resulting from an accident or mechanical or other failure of anything used as a means of conveyance or transportation:

'G. Conditions:

'1. Exclusions: This certiciate does not cover death, injury or dismemberment:

'(b) Directly or indirectly caused or contributed to by intentional self injury disease or natural causes, suicide or attempted suicide. * * *

'2. Notice of Loss: Notice in writing must be sent to the Underwriters of any accident to the Assured as soon as reasonably practicable after the occurrence of the accident * * * In the event of death, immediate notice must be sent to the Underwriters. In no case will the Underwriters be liable to make compensation to the Assured or to his representatives unless the medical or other officer of the Underwriters * * * shall be allowed * * * in the event of death to make any post-mortem examination of the body of the Assured as the Underwriters are advised necessary for the purpose of ascertaining the * * * true cause of death. * * *'

The beneficiaries attack the judgment against them upon the ground that the trial judge did not properly instruct the jury. The insurer's position is that the rulings upon instructions were correct.

Complaint is made of an instruction given at the request of the insurer by which the jury was told that the plaintiffs had the burden of proving that the death of Francis was not 'directly or indirectly caused or contributed to by * * * disease or natural causes.' ¹ The effect of this instruction, they assert, is to deprive them of the benefit of the rule established by Brooks v. Metropolitan Life Ins. Co., 27 Cal.2d 305, 163 P.2d 689, and particularly as that rule was applied in Happoldt v. Guardian Life Ins. Co., 90 Cal.App.2d 386, 203 P.2d 55.

The Brooks case was...