Brownlee v. Mutual Ben. Health & Accident Ass'n

• Decision Date: 05 November 1928
• Docket Number: No. 5481.,5481.
• Citation: 29 F.2d 71
• Parties: BROWNLEE et al. v. MUTUAL BEN. HEALTH & ACCIDENT ASS'N.
• Court: U.S. Court of Appeals — Ninth Circuit

29 F.2d 71 (1928)

BROWNLEE et al. v. MUTUAL BEN. HEALTH & ACCIDENT ASS'N.^*

No. 5481.

Circuit Court of Appeals, Ninth Circuit.

November 5, 1928.

Ernest Cole, of Portland, Or., for appellants.

Wallace McCamant, Ralph H. King, and McCamant & Thompson, all of Portland, Or., for appellee.

Before RUDKIN and DIETRICH, Circuit Judges, and NORCROSS, District Judge.

NORCROSS, District Judge.

This is an action by the beneficiaries of an accident insurance policy issued by appellee to Leslie J. Brownlee, the insured. The policy by its terms expired at 12 o'clock noon January 1, 1927. It contained the following provision:

"If the insured shall, through accidental means, sustain bodily injuries * * * which shall independently and exclusively of disease and all other causes, immediately, continuously and wholly disable the insured from the date of the accident and result in any of the following specific losses within thirteen weeks, the Association will pay — For loss of life $5,000.00. * * *"

Issue was joined on the following allegation in the complaint:

"That on the first day of January, 1927, and prior to 12 o'clock noon of said date and while said policy was in full force and effect, and while the said insured, Leslie J. Brownlee, was on an outing and pleasure trip on Mount Hood, situated in the County of Hood River, State of Oregon, the said Leslie J. Brownlee received and sustained bodily injuries effected through external, violent and accidental means, which said means alone caused his death prior to January 20, 1927."

At the conclusion of the testimony the District Court sustained appellee's motion for a directed verdict, and this appeal is prosecuted from a judgment entered thereon.

The evidence established the fact that on the morning of January 1, 1927, the insured, in company with one Al Feyerabend, started to climb to the summit of Mt. Hood. Some time in the forenoon, because of the existence and severity of a snowstorm, the insured decided to give up the attempt and to return down the mountain. This was the last ever seen of him, alive or dead. Feyerabend continued the ascent for a time; then he also gave up and returned. Other portions of the evidence will be considered in connection with the legal questions presented on the record.

In sustaining the motion for a directed verdict, the court, after commenting on certain authorities, said:

"Now in this case we may assume that these boys separated at eleven o'clock, and that the weather was all that your witnesses claim, and that the conditions were exactly as they have described them. What is there in the case whereby we can say, or whereby there is a presumption that death occurred at twelve o'clock, or five minutes before twelve, or five minutes after twelve, or at one o'clock, or at two o'clock, and what is there in the case whereby a presumption can be raised that he died at any particular place upon the side of that mountain? Now that matter, I think, would be left to the guess of the jury. The evidence in this case might be sufficient to raise a presumption that the death of deceased was caused by reason of the conditions as they existed at Mt. Hood, January 1, 1927, coupled with the fact that a diligent search has been made for him, and that he has never been found, and the length of time that has transpired since January 1st. All these facts taken together might at this time raise a presumption that death had occurred, but that is as far as it will go. To say that that presumption would give rise to another presumption that he died at a particular time, or particular place, cannot be supported by the authorities. The Supreme Court of this state has decided a number of cases very similar to this, and where the question for consideration was the cause of death, and has held that where that matter is left to speculation, or to the guess of the jury, a verdict should be instructed."

It is contended by counsel for appellee that the judgment must be sustained because:

"Assuming that insured is dead, the proof leaves the manner of his death wholly in the realm of speculation. Based on conjecture his death may be explained in various ways, among which are the following: (1) That insured fell and sustained bodily injuries which resulted in his death; (2) that insured became lost, and having exhausted his food supply, starved to death; (3) that insured, having become tired and exhausted, stopped to rest and subsequently froze to death; or (4) that insured, because of the physical strain to which he had been subjected, died of natural causes."

If, as contended, there is no evidence in the record from which the jury may do other than speculate or guess as to the cause of death, then the judgment should be affirmed. Reading Co. v. Boyer (C. C. A. 3d) 6 F.(2d) 185; Philadelphia & R. Ry. Co. v. Cannon (C. C. A. 3d) 296 F. 302; Spain v. Oregon-Washington R. & N. Co., 78 Or. 355, 153 P. 470, Ann. Cas. 1917E, 1104; Medsker v. Portland R., L. & P. Co., 81 Or. 63, 158 P. 272.

If, however, there is evidence submitted from which the jury would be warranted in eliminating from consideration the second, third, and fourth possible causes of death above enumerated, then the case was one for the jury, and it was error to direct a verdict.

It is contended by counsel for appellant that if the deceased died from freezing, such cause would be an accident within the terms of the policy; but that question we think unnecessary to consider, otherwise than in reference to an immediate cause of death preceded by some other accident.

In the case of Spain v. Oregon-Washington R. & N. Co., cited supra, the court said:

"There is no evidence which has a tendency to show from which of these causes the subsequent aggravated condition arose. * * * When the evidence leaves the case in such a situation that the jury will be required to speculate and guess which of several possible causes occasioned the injury, that part of the case should be withdrawn from their consideration. Armstrong v. Town of Cosmopolis, 32 Wash. 110 (72 P. 1038)."

If the evidence in this case stopped at the point where and when the insured separated from Feyerabend, then it must be conceded that, if his death be assumed, the cause thereof would be left entirely to speculation. The evidence, however, does not stop at this point. The day following the disappearance of the insured, an organized search of the region where he was most likely to be found was instituted. Several parties were engaged in this search, and it continued for a week; "the searchers worked in different parties according to assignment." In the following summer, after much of the snow had disappeared from the lower parts of the mountain, the search was resumed, without success. This we think was some evidence to go to the jury in a process of elimination of the various speculative ways in which death might have occurred. There was evidence that in the region in which the insured was last seen there were crevasses into which he could have fallen, and not be able to extricate himself, or ever be found.

The following excerpts from the testimony appear in the transcript:

The witness Al Feyerabend testified:

"In ascending the mountain there is no trail, but there is a general route used by climbers." "They selected a course probably half way between White River Canyon and Zigzag Canyon — Zigzag Glacier; they had no way of following a direct line; there was a space probably three-fourths of a mile in width between the two dangerous sections of the mountain — that is, Palmer Glacier is one dangerous section, which is to the extreme right, and Zigzag Glacier is on the extreme left; that they had probably three-fourths of a mile, or perhaps more, space between the two, so it really didn't matter as to the exact course which they pursued, but due to the storm they could not see very far and their direction was selected in two ways — they would keep going up hill and would follow from one dark rock to another, because on a steep slope the upper side of the rock is bridged over with snow and the bottom side as a rule is left bare; that they would follow from one rock to another, until they got to a place which, no doubt, was White River Canyon; that they could not see anything nor get the general lay of any place which they could recognize, but they could see the edge of the canyon, and beyond that there was a deep blue, which would signify quite a depth or quite a vast space, and by this they thought they knew approximately where they were, and they continued up along the edge of this canyon, keeping far enough away so that they would not be apt to fall into it, until they came to quite a high rise of ground they thought Triangle Moraine, which is probably the highest point along the south edge of White River Glacier, and sticks up as kind of a knoll in a direct line east and west with Crater Rock, and that if they would drop over toward the left, they would be in the swale that would lead them into the crater and from there the climb would consist merely following around Crater Rock, and there would be no trouble to get to the top; that they went around this rise thinking they were heading in the right direction, and continued for quite a while, but did not seem to get into the swale, and they became discouraged and used a compass line running due north, and were traveling in that direction when Leslie Brownlee decided he would go back; Leslie asked witness if the course was south and witness told him `Yes,' that the south course would take him out to the highway; that at that time it was very stormy; that the higher up in the mountain the worse the storm became; that you could not see any distance; that you could not see anything in front of you because there were no dark objects up in that altitude; the down side of the rocks was blown with kind of an ice formation, which looks like a bunch of bananas hanging on all the rocks which...