Allen v. Washington Nat. Ins. Co.

• Court: Washington Supreme Court
• Writing for the Court: STEINERT, Justice.
• Citation: Allen v. Washington Nat. Ins. Co., 115 P.2d 685, 9 Wn.2d 563 (Wash. 1941)
• Decision Date: 30 July 1941
• Docket Number: 28359.
• Parties: ALLEN v. WASHINGTON NAT. INS. CO.

115 P.2d 685

9 Wn.2d 563

ALLEN v. WASHINGTON NAT. INS. CO.

No. 28359.

Supreme Court of Washington

July 30, 1941

Department 1.

Action on an accident policy by J. Howard Allen against the Washington National Insurance Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Appeal from Superior Court, King County; Chester A. batchelor judge.

DuPuis & Ferguson, of Seattle, for appellant.

Jones &amp Bronson and Wheeler Grey, all of Seattle, for respondent.

STEINERT Justice.

Plaintiff brought suit upon an insurance policy to recover the amount of indemnity provided therein for the death of his wife, the person insured. The action was tried to a jury, and a verdict was returned in favor of plaintiff. Defendant insurance company appealed.

On October 14, 1938, appellant, Washington National Insurance Company, in consideration of a premium of one dollar and fifty cents, issued its personal accident insurance policy with limited liability to Benna M. Allen, the named insured. Respondent, J. Howard Allen, was designated therein as beneficiary. The policy provided indemnity for loss of life, limb, or sight of the insured through various specifically named accidental means, and fixed the sum of one thousand dollars as the amount of indemnity payable for loss of life resulting from an automobile accident.

The provisions of the policy pertinent to this controversy are as follows:

'Part 4--Automobile, Pedestrian, Passenger Elevator, Burning Building and Other Accidents--$1,000.00

'If Such Injury shall be sustained:

'(a) By the wrecking of any automobile of the exclusively private passenger type, lawfully registered and licensed as such, * * * in which the Insured is riding as driver or passenger, * * * the Company will pay the indemnity provided in Column 4 of Section One * * * [$1,000.00].'

'Part 8--Definitions, Exceptions and General Provisions

* * *

* * *

"Wrecking' as used in this policy means injury which necessitates repair in order to place in as good condition subsequent to as Before the accident.

"Riding In' as used in this policy does not extend to nor cover the Insured while on the steps, platform or running board.'

On August 14, 1939, while the policy was in force, Mrs. Allen came to her death by reason of an accident which occurred on the private driveway of the Allen premises, and in which an automobile belonging to the Allens was involved. The accident was of an unusual kind, and the exact cause and manner of its occurrence are not definitely known. No one witnessed the tragedy in its entirety, and no one observed Mrs. Allen during the course of the particular event until, at its conclusion, she was found lying mortally injured by the side of the automobile.

Appellant's main contention on appeal is that the evidence was insufficient to warrant submitting to the jury the issue as to whether or not Mrs. Allen's death resulted from causes, and in a manner, covered by the policy, that is, whether or not her death resulted from injuries sustained by the 'wrecking' of an automobile in which she was 'riding as driver or passenger.'

Respondent and his wife, the insured, resided at 917 Twelfth avenue north in the city of Seattle. Their residence was located on the west side of the street, facing eastward. There were three rooms, in sequence, on the south side of the house, and in the middle, or living, room there was a large bay window. The center sill of the window was eight feet above the ground, and the sill to the right, or west, was slightly higher.

South of the house was a driveway, about eight feet wide, leading from the street westerly to a garage located at the southwest corner of the lot on which the Allen home stood. From a point about on a line with the front of the house, the driveway sloped downward to the garage, dropping fifty-one inches in sixty-nine feet, a gradient of something over six per cent. The driveway was separated from the house by a strip of lawn about seven feet wide, over which the bay window projected approximately two feet. A hedge bounded the driveway on the south.

The garage was a frame structure approximately eleven feet wide from north to south and opening eastwardly, toward the street in front of the house. The east, or front, end of the garage consisted of a set of eight-foot double doors flanked on either side by a narrow section of wall about a foot and a half wide, to which the doors were hinged.

At the time of her death, Mrs. Allen was fifty-nine years of age, was about five feet tall, and weighed one hundred forty pounds. Mr. Allen was seventy-four years of age. They owned a Chevrolet sedan, in which the emergency brake and the gear shift were located alongside the steering wheel, near the middle of the car. Mr. Allen never drove the car, all of the driving veing done by Mrs. Allen.

There were but three witnesses whose testimony threw any direct light upon the activity or upon the possible occupancy of the automobile at the time, and during the course, of the accident: Mr. Allen, Mrs. Russell Hladik who was a maid in the Allen home, and Mr. Gerald Frink, a friend of the Allen family.

Mr. Allen's testimony was as follows: In the afternoon of the day of the accident, he and Mrs. Allen had driven home in their sedan, arriving there at about four o'clock. Mrs. Allen parked the car on the driveway just beyond the point where the downgrade began, as was her usual custom, so that she could run the car into the garage later without having to start the motor. It was Mrs. Allen's habit, when parking the car in that position, to put on the emergency brake. Mr. Allen could not recall whether or not, on that particular occasion, she had put on the brake and also put the car in reverse gear; he was sure, however, that the emergency brake was on. In this connection, he volunteered the statement that 'the brake was the weakest part of the car,' and that he 'had to have another notch put on the brake to get the car to respond to the brake.' In answer to a hypothetical question on cross-examination, Mr. Allen stated that if an automobile were parked beyond the crest of the driveway, without being put in reverse gear, and the brake were to slip, the vehicle would roll toward the garage.

After alighting from the automobile, Mr. and Mrs. Allen went into the house, where, according to a suggestion contained in Mr. Allen's testimony, two ladies visited Mrs. Allen for an hour or two during the latter part of the afternoon.

After their evening meal, or at about seven o'clock, Mrs. Allen went out to water the lawn. At that time, the car was still at the place where it had been parked three hours Before . Mr. Allen remained in the house and, after seating himself in a reclining position near the bay window in the living room, began reading a paper. From his position, he could not see anyone on the lawn, owing to the height of the window above the ground.

A little while later, however, at about seven-thirty o'clock, Mr. Allen heard a scream from outside and, on arising from his chair and looking through the right, or west, portion of the bay window, saw the automobile proceeding down the driveway at a speed of four or five miles per hour. He did not see Mrs. Allen anywhere, although he had a view of the driveway, the interior of the garage, and the right-hand side of the automobile. Parenthetically, it may be observed that, from his position, Mr. Allen was looking down upon the top and right side of the automobile, and therefore was unable to see whether or not anyone was occupying the space within the left side of the car where the driver normally sits; he could, however, have seen anyone of Mrs. Allen's height standing up-right on the left-hand running board.

In the position from which he was looking, Mr. Allen watched the automobile as it gathered momentum, until, 'with a terrible crash,' it struck the narrow front wall at the southeast corner of the garage and, after pausing momentarily, continued rapidly on into the building. He stated that if it had not been for the collision against the corner, the car would have gone through the far end of the garage because of the delicate framework of that structure.

Mr. Allen then turned and ran hurriedly out through the front door of the house and around to the garage. He there found that the automobile had knocked the narrow wall at the southeast corner inward about two feet, and had torn loose the bracing above so that it hung down over the left rear fender. The car had come to a stop with its left front fender against the south wall of the garage and with its rear end projecting at an angle about two feet into the driveway. The position of the automobile, the frame wall on the south, and the debris at the front formed a triangular pocket within the garage on the left side of the car, and barred entrance to the garage on that side.

Mrs. Allen at times had been subject to heart attacks, from which, however, she would recover in a very few minutes. Thinking that she had suffered an attack of that nature, and expecting to find her in the driver's seat, Mr. Allen entered the garage at the right-hand side of the car, opened the right front door, and looked inside. Mrs. Allen was not to be seen. He observed, however, that the left front door of the automobile was open three or four inches, and, according to his recollection, the window of that door was closed. Later, on cross-examination, however, he stated that, although he was not positive, he would say that the window was 'down.'

As he opened the right front door of the automobile and looked inside, he heard Mrs. Allen cry out to him: 'Howard, get me out of here.' The record is not entirely clear as to whether or not the right rear door of the...