Barker v. California-Western States Life Ins. Co.

• Decision Date: 24 July 1967
• Docket Number: CALIFORNIA-WESTERN
• Citation: 252 Cal.App.2d 768,61 Cal.Rptr. 595
• Court: California Court of Appeals Court of Appeals
• Parties: Rose L. BARKER, Plaintiff and Appellant, v.STATES LIFE INSURANCE COMPANY et al., Defendants andRespondents. Civ. 766.

Page 595

61 Cal.Rptr. 595

252 Cal.App.2d 768

Rose L. BARKER, Plaintiff and Appellant, v. CALIFORNIA-WESTERN STATES LIFE INSURANCE COMPANY et al., Defendants andRespondents.

Civ. 766.

Court of Appeal, Fifth District, California.

July 24, 1967.

Rehearing Denied Aug. 17, 1967.

Hearing Denied Sept. 21, 1967.

O'Connor & Lewis, Sacramento, and Ewart Lytton Merica, San Francisco, for appellant.

Downey, Brand, Seymour & Rohwer and Richard G. Worden, Sacramento, for respondents.

GARGANO, Associate Justice.

Respondents for several years prior to the institution of this action had been writing ordinary group life insurance on the lives of California veterans insured under the commonly called 'Cal-Vet' loan program, pursuant to certain agreements which they entered into with the California Department of Veterans Affairs. By supplemental agreement dated January 20, 1960, effective February 1, 1960, the respondents agreed to increase the life insurance benefits on the lives of the insured veterans; they also agreed to provide additional indemnity in the event of accidental death or death by accidental means. However, the supplemental policy which was submitted to and approved by the state Insurance Commissioner contained the following limiting provision with regard to the additional benefit for accidental death:

'Commission of a Felony: The company shall not be liable for any loss to which a contributing cause was the insured's commission or attempt to commit a felony.'

Appellant's husband, Lester A. Barker, a California veteran, was killed during the early morning hours of February 7, 1960, as the result of a head-on collision on Elvas Freeway at the Arden intersection in Sacramento. The collision, which resulted in the death of another person as well, occurred between an automobile which Barker was driving north on the southbound lanes of the highway (on the wrong side of the freeway), and a vehicle which was traveling south in the southbound lanes. Shortly before the accident appellant and her husband had been guests at a party at the Eagle's Hall in Sacramento, where Barker had been drinking heavily and had fallen several times. After the accident a blood test of Barker's blood taken from his body during the autopsy indicated that it contained .18% Alcohol by weight.

At the time of his death Barker's life was insured under the 'Cal-Vet' loan program. He was also insured under the supplemental agreement of February 20, 1960, although he had not yet received his copy of the policy and apparently was not aware of the existence of the additional insurance. After Barker's death respondents paid appellant, as sole beneficiary, all life insurance benefits to which she was entitled under their insurance policies, but refused to pay the additional benefit for death resulting by accidental means amounting to approximately $12,859.06. Accordingly, appellant instituted this action in the Superior Court of Sacramento County for breach of contract and declaratory relief. The cause was tried before the court sitting without a jury, and at the conclusion of the trial judgment was entered by the court in favor of respondents. The court expressly found that Barker's death was caused by accidental means, but concluded that appellant was not entitled to recover the additional indemnity benefit because a contributing cause to the insured's death was the insured's commission of a felony. Appellant appeals from this judgment.

Respondents initially contended (by way of affirmative defenses) that they were not liable to appellant under the supplemental policy because Barker's death did not result directly and independently of all other causes from accidental means, and that a contributing cause to his death was the commission of or the attempt to commit a felony. Appellant therefore spends considerable time and effort in her brief in pointing to certain inconsistencies in the policy (and to a letter written by an agent of respondent California-Western States Life Insurance Company) in order to demonstrate that the decedent Leslie A. Barker was insured for accidental death as well as for death resulting by accidental means. However, during the trial respondents abandoned the defense that Barker's death did not result by accidental means and do not assert the defense in this appeal. Thus, the only questions presented herein are:

I Is felony drunk driving as defined in Vehicle Code section 23101 a felony within the exclusion clause contained in the supplemental policy?

II If so, is a conviction essential before the felony is deemed committed under the exclusion clause?

III Is the exclusion clause invalid or otherwise unenforceable against this appellant?

IV Assuming that the exclusion clause is valid and enforceable, is there sufficient evidence in the record to support the trial court's finding and conclusion of law that the decedent Leslie A. Barker had committed a felony prior to his death, and that this felony was a contributing cause thereto?

I

Vehicle Code section 23101 defines felony drunk driving as follows:

'Any person who, while under the influence of intoxicating liquor, or under the combined influence of intoxicating liquor and any drug, drives a vehicle and when so driving does any act forbidden by law or neglects any duty imposed by law in the driving of such vehicle, which act or neglect proximately causes bodily injury to any person other than himself is guilty of a felony and upon conviction thereof shall be punished by imprisonment in the state prison for not less than one year nor more than five years or in the county jail for not less than 90 days nor more than one year and by fine of not less than two hundred fifty dollars ($250) nor more than five thousand dollars ($5,000).'

Hence, it is clear that under this section any person who (1) while under the influence of intoxicating liquor and while driving a vehicle (2) does any act forbidden by law or neglects any duty (3) which results in the death or injury of someone else commits a felony. This is so because the section categorizes the offense as a felony and provides that upon conviction thereof the offender shall be punished by imprisonment in the state prison or by imprisonment in the county jail. It is settled that if an offense is punishable either as a felony (by imprisonment in the state prison) or as a misdemeanor (by imprisonment in the county jail), it is deemed a felony for all purposes up to the imposition of sentence (Penal Code section 17; People v. Banks, 53 Cal.2d 370, 1 Cal.Rptr. 669, 348 P.2d 102; People v. Williams, 27 Cal.2d 220, 163 P.2d 692; People v. Lippner, 219 Cal. 385, 26 P.2d 457; Doble v. Superior Court, 197 Cal. 556, 241 P. 852).

Appellant asserts, however, that this is not and cannot be so as to an offense punishable by imprisonment in the state prison or by imprisonment in the county jail in the absence of a conviction. In fact, she asserts that the common law background of the word 'felony' and the historical background of Penal Code section 17 unequivocally indicate that a felony is a crime which 'must' be punishable by imprisonment in the state prison, and does not and cannot include a crime which merely 'may' be punishable in the discretion of the court in the state prison. Consequently, she concludes that since the felony exclusion clause contained in the policy does not specifically refer to Vehicle Code section 23101, and since this section provides for an alternate penalty, the decedent Barker did not and could not have committed a felony because he was not charged with a felony nor convicted after a charge, nor was he sentenced to a state prison after conviction.

Although it may be true (as appellant contends) that the decisions holding that an offense punishable either by imprisonment in the state prison or by imprisonment in the county jail is deemed a felony for all purposes up to the imposition of sentence are cases in which the defendant had been convicted, they do not by implication or otherwise require a conviction as an essential factor. To the contrary, in Doble v. Superior Court, supra, 197 Cal. 556, 241 P. 852, the offense was punishable as a felony or misdemeanor, depending upon the imposition of sentence, and no charge had been lodged against defendant within the period prescribed by the statute of limitations for misdemeanors. The court held, however, that the statute of limitations relating to felonies was applicable because the offense was treated as a felony for all purposes up to the imposition of sentence. Consequently, by implication at least, the court held that such an offense is to be treated as a felony even prior to the lodging of a charge or to a conviction. Moreover, as we have stated, Vehicle Code section 23101 itself categorizes the offense a felony, and it is the Actual imposition of a jail sentence that reduces it from a felony to a misdemeanor (People v. Trimble, 18 Cal.App.2d 350, 63 P.2d 1173). If the Legislature may classify offenses as felonies or misdemeanors as it chooses (as it has done in Penal Code section 17 by the nature and imposition of the sentence), it necessarily follows that it may classify a particular offense as a felony up to the actual imposition of sentence as it has done in Vehicle Code section 23101. Thus, the rule articulated in People v. Trimble, supra, 18 Cal.App.2d 350, 63 P.2d 1173, that an offense categorized by the Legislature as a felony is reduced to a misdemeanor if a misdemeanor sentence is imposed, should not and must not be extended to a case where no sentence has been imposed for whatever reason (See 11 So.Cal.L.Rev. 298). Accordingly, we conclude that the offense described in section 23101 must be deemed a felony for all purposes (including the determination of the contractual rights of the parties under an insurance policy) unless the offense was actually reduced to a misdemeanor after conviction by the imposition of a fine or by...