Comfort v. Continental Cas. Co.

• Decision Date: 16 November 1948
• Docket Number: 47320.
• Citation: 34 N.W.2d 588,239 Iowa 1206
• Parties: COMFORT v. CONTINENTAL CASUALTY CO.
• Court: Iowa Supreme Court

34 N.W.2d 588

239 Iowa 1206

COMFORT v. CONTINENTAL CASUALTY CO.

No. 47320.

Supreme Court of Iowa

November 16, 1948

Bradshaw, Fowler, Proctor & Fairgrave, of Des Moines, for appellant.

Lehman Hurlburt, Hossfeld, Blanchard & Cless, of Des Moines, for appellee.

HAYS Justice.

Appellee, at the time in question, carried two insurance policies with appellant. One was known as a 'medical reimbursement' policy; the other, as a 'loss of time' policy.

The medical reimbursement policy provided: "Injury', as used in this policy, means bodily injury which is the sole cause of the loss and which is effected solely through accidental means while the policy is in force'.

The loss of time policy provided: "Injury', as used in this policy, means bodily injury (suicide or self-destruction or any attempt thereat while either sane or insane not included) which is the sole cause of the loss and which is effected solely through accidental means while this policy is in force'.

At the close of the testimony and after both parties rested, appellant moved for a directed verdict on the following ground 'That the plaintiff has failed to produce any evidence to establish that there was an accident produced or caused within the meaning of the policies in this cause and in particular that the plaintiff has produced only evidence of facts which could not have happened as a matter of law and as a matter of natural law and common knowledge'. The motion was overruled. The court instructed the jury as follows (Instruction No. 4):

'You are instructed that an 'accident' is an event which under the circumstances, is unusual and unexpected by a person to whom it happens; the happening of an event without the concurrence of the will of the person by whose agency it is caused. By 'accidental means' is meant those means, the effect of which does not ordinarily follow and cannot be reasonably anticipated from the use of these means; an effect which the actor did not intend to produce and which he cannot be charged with the design of producing.' The jury returned a verdict for appellee and final judgment was entered. No exceptions were taken to above instruction and the definition of 'accident' and 'accidental means' is the law of this case.

The error assigned for a reversal is the overruling of the motion for a directed verdict. The question, thus presented on this appeal, is the single one of whether, under the definitions in Instruction No. 4, there was sufficient evidence to submit the case to a jury. The established rule is that before a court is warranted in directing a verdict, every fact favorable to the party against whom the verdict is asked, and which the evidence tends to prove, must be conceded. Guest v. Burlington Opera-House Co., 74 Iowa 457, 38 N.W. 158; Calvert v. Mason City Loan & Investment Co., 219 Iowa 963, 259 N.W. 452; Tuthill v. Alden, Iowa, 30 N.W.2d 726.

This is no material dispute in the facts. Appellee, despondent over marital troubles, decided to commit suicide by asphyxiation. About five P. M., on the date in question, she closed the windows and doors of her five-room bungalow and turned on all gas burners of her stove. (Four on top and the oven.) After writing a suicide note she lay down and went to sleep, awakening about mid-night. She then went to the kitchen and turned off the gas. She testified as follows:

'Q. Well on finding yourself alive (upon awakening at mid-night) what was your mental process as to whether you wanted to live or not? A. Well, I never thought particularly about whether I wanted to live or not?'

She further testified, regarding her actions just prior to the explosion:

'Q. Turned them all off? A. Yes sir.

'Q. The oven as well as those at the top of the atove? A. Yes sir.

'Q. Then what? A. And I lighted--I thought well, I had better see if the pilot light would light, and if it would I would light it, and I went to the cupboard and got a match and lighted the pilot light, which lighted and when I held the match up to my mouth to blow it out the gas apparently in he air ignited and burned my face and caught my hair. * * *' She stated she lighted the pilot for when she wanted to use the stove.

She further testified:

'Q. Mrs. Comfort, when you took a match and lit those burners, did you intend to commit suicide? A. I did not.

'Q. Didn't you realize that by lighting the pilot there was apt to be a fire and explosion? A. No, I certainly did not, or I wouldn't ever have done it.

'Q. When you were contemplating suicide, did you at any time plan to commit suicide by fire or explosion? A. I did not.'

'On cross examination, she stated:

'Q. Anyway, at the time you struck the match, if you did strike it, you knew the house was full of gas, did you not? A. No, I didn't know that the house was full of gas. You could smell gas. I smelled it, as I stated previously.

'Q. Did...