Wells Fargo Bank & Union Trust Co. v. Mutual Life Ins. Co.

• Decision Date: 06 September 1933
• Docket Number: No. 7101.,7101.
• Citation: 66 F.2d 890
• Parties: WELLS FARGO BANK & UNION TRUST CO. v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: U.S. Court of Appeals — Ninth Circuit

66 F.2d 890 (1933)

WELLS FARGO BANK & UNION TRUST CO. v. MUTUAL LIFE INS. CO. OF NEW YORK.

No. 7101.

Circuit Court of Appeals, Ninth Circuit.

September 6, 1933.

Arnold C. Lackenbach, F. Whitney Tenney, Richard E. Guggenheim, and Heller, Ehrman, White & McAuliffe, all of San Francisco, Cal., for appellant.

F. Eldred Boland, Knight, Boland & Riordan, and Leo R. Friedman, all of San Francisco, Cal., for appellee.

Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.

GARRECHT, Circuit Judge.

This is an appeal from a judgment entered upon a verdict directed by the trial court at the close of plaintiff's case in favor of appellant, plaintiff below, in the sum of $14,527.65.

This action was originally brought by appellant as trustee under a so-called insurance trust agreement executed by Walter Radius as settler, and in which appellant was named beneficiary of a life insurance policy issued by respondent company on the life of Walter Radius in the face amount of $15,000. The policy provides for double indemnity in the event of death resulting from "bodily injury effected solely through external, violent and accidental means."

Walter A. Radius, the insured named in the policy, came to his death as a result of asphyxiation due to carbon monoxide gas coming from and generated by his automobile upon which he was or had been working in and about the garage at his residence.

In 1919 or 1920 Radius took a course in automobile repairing given by the University of California Extension Division and received a certificate therefor. He frequently worked on his automobile, apparently making it a sort of hobby. He owned a Rickenbacher eight-cylinder sedan about six years old, upon which, for a long time, he had been in the habit of making minor repairs and adjustments. About a week before his death he and several others had returned from a trip to Death Valley made in the car described. Several times after the return from this trip he remarked that he wanted to clean up the car, tighten it up, and put it in order, saying that the pump needed packing, an oil line leaked, and the battery box rattled. After dinner on the evening of April 6, 1932, he and his wife listened to the radio until about 8 o'clock, when Mr. Radius said that he had the time and inclination to work on the car, and, after playing with his dog for awhile, went down to the garage. The deceased was a man 52 years of age and in perfect health at the time of his death. His family life had been harmonious, and apparently he had no serious financial difficulties nor had he been showing any moodiness or signs of despondency.

The dimensions of the garage referred to are approximately as follows: Twenty-two feet long, thirteen feet two inches wide, and nine feet four inches high, with additional air space in the rear eight feet wide, eight feet high, seventeen feet two inches long. The house consists of two floors and the basement, with the garage below, which is reached by going down an outside staircase, then back through the basement and down another stairway to the garage. The door at the head of the stairway leading from the basement down to the garage was open, which would allow a volume of air to come into the garage. There was a small crack under the front garage door and a few cracks in the side wall that would admit air.

After Mr. Radius went to the garage, his wife did some work on the lower floor and then went upstairs to bed, where she read for about two hours. During that time she heard the dog barking in the basement as if some one was playing with it and also heard some hammering. About 10 o'clock she turned out the light and fell asleep. She awakened suddenly about 1:30 a. m. and saw that Mr. Radius had not come into the room; looked into the closet, she saw that his nightclothes were still there, and then remembered that he was working in the garage; she rushed to that part of the house. On the way down she noticed that the door leading from the basement down to the garage was open. The light was burning in the garage, the room was hot, and there was a strange odor. Mr. Radius was lying on a dolly at the foot of the stairs with his legs, from the knees down, under the car and his head and torso out from under the car, grease and oil spots were on his face and hands, and a monkey wrench was in his hand. After opening the garage, she dragged him out on the sidewalk, then turned off the engine of the car, which was running. The hood of the automobile on the side nearest the stairs was open. An extension light was hanging in the open hood. She further testified that she had heard hammering or chopping probably twice while she was reading in bed, and that her husband had worked in the garage on other occasions when she had retired. She also stated that on the night in question she had heard Mr. Radius come upstairs from the garage to the basement two or three times; the last time being about the time she fell asleep. On the day after Mr. Radius' death she found a hatchet and some chips of wood on the table in the laundry that were not there the day before his death.

Walter Radius, 22 year old son of the deceased, testified that the trip to Death Valley and return covered about 1,500 miles, and that the car developed several rattles and squeaks and several adjustments were needed such as tightening up the pump and the brake rod, that his father had been in the habit of making repairs to the automobile, and that he assisted him frequently when at home from Stanford University where he was a student. He examined the battery of the car shortly after his father's death and found that some pieces of wood had been recently wedged in the lower part of the battery box to keep the battery from shifting around as it had done in the past. The wood used was clean. When the car was running, the choke was usually pushed in the whole way, but sometimes the vibration would force it out about one-eighth of an inch. On the morning of Mr. Radius' death, when he went to start the car for the representative of the Health Department, he noticed that the choke was out slightly — probably from three-sixteenths to one-fourth of an inch.

Another witness, a garage man who had done some work on the Rickenbacher, testified that the deceased was in the habit of working on his own automobile, and that during a conversation with him before his death the witness instructed the deceased how to keep the pump on the car tight, and that it was necessary for the car to be running in order to tighten the pump.

The evidence further showed that several years before the deceased's death there had been a discussion between him and his wife regarding carbon monoxide poisoning from the exhaust of an automobile, occasioned by the fact that the father of a friend of one of the children had met death in that way, but there had been no further reference or discussion about it since that time.

At the close of plaintiff's case, the defendant moved the court for a directed verdict of the jury in favor of plaintiff for the sum of $14,527.55, which amount had been tendered, being the principal amount of the policy less accrued premium due, which motion the court granted.

The motion was made upon the grounds that the plaintiff had not introduced evidence sufficient to warrant or support a verdict in its favor for double indemnity or to prove that the death of Walter A. Radius was effected by or through accidental means, and furthermore the evidence affirmatively established that his death was not effected by accidental means, but was the natural and probable consequence of his voluntary act in starting and running the engine of his automobile in the garage where carbon monoxide was discharged, from the result of which he died.

From the ruling of the court directing the jury to return a verdict in favor of plaintiff at the close of plaintiff's case and the judgment entered thereon, plaintiff has appealed.

The questions for determination are whether accidental death by asphyxiation under the circumstances of this case satisfies the requirements of the policy that death must result from "bodily injury effected solely through external, violent and accidental means," and was the undisputed evidence sufficient to carry the case to the jury.

The issues in the case have been simplified. For the purpose of this appeal it may be assumed that appellant does not deny that the insured voluntarily and intentionally caused the motor to be started; however, neither appellee in its motion for a directed verdict nor the trial judge in granting the motion acted upon any assumption that the evidence indicated that deceased had committed suicide. It is conceded that, under the circumstances as pleaded and proved, the death of the insured was caused by external and violent means.

The sole question remaining is: Were the means which the evidence shows might have caused death necessarily excluded from being classed as "accidental means"?

The distinction between "accidental death" and "death by accidental means" has often been discussed in the reports¹ and requires no extended comment here. To sustain the ruling of the lower court, much emphasis has been placed upon Olinsky v. Railway Mail Association, 182 Cal. 669, 189 P. 835, 836, 14 A. L. R. 784, Rock v. Travelers' Insurance Company, 172 Cal. 462, 156 P. 1029, L. R. A. 1916E, 1196, Pledger v. Business Men's Association (Tex. Civ. App.) 197 S. W. 889, but in these cases death resulted from overexertion, and, as stated in the opinion in the case Olinsky v. Railway Mail Association, supra, "overexertion is not an accidental means of death." In support of this statement the opinion cites a long list of authorities.

In considering the case at bar, it is important to notice this distinction which had been clearly indicated in the law.

"It is now well established that where death is caused by asphyxiation and the breathing of the gas was not intentional, the...