Evans v. Metropolitan Life Ins. Co.

• Decision Date: 05 December 1946
• Docket Number: 29710.
• Citation: 174 P.2d 961,26 Wn.2d 594
• Parties: EVANS v. METROPOLITAN LIFE INS. CO. SAME v. TRAVELERS INS. CO.
• Court: Washington Supreme Court

174 P.2d 961

26 Wn.2d 594

EVANS v. METROPOLITAN LIFE INS. CO.

SAME v. TRAVELERS INS. CO.

No. 29710.

Supreme Court of Washington, En Banc.

December 5, 1946

Rehearing Denied Dec. 27, 1946.

Action by Eva M. Evans against the Metropolitan Life Insurance Company, a corporation, to recover on a life policy in which the plaintiff was named as beneficiary, and action by Eva M Evans against the Travelers Insurance Company, a corporation to recover on an accident policy in which the plaintiff was named as beneficiary. From judgment in favor of the plaintiff, the defendants appeal, and the appeals are consolidated.

Judgment reversed, with instructions to dismiss actions.

CONNELLY J., and MILLARD, C.J., dissenting.

Appeal from Superior Court, Pierce County; Ernest M. Card, judge.

Preston, Thorgrimson, Horowitz & Turner, of Seattle, and Metzger, Blair & Gardner, of Tacoma, for appellants.

W. W. Mount, of Tacoma, and John D. Carmody, of Seattle, for respondent.

SIMPSON Justice.

Two actions were instituted by plaintiff to recover upon insurance policies. One was against the Metropolitan Life Insurance Company. The complaint in that case alleged that December 1, 1925 the company issued its policy of life insurance to Leon R. Evans, and that plaintiff was named as beneficiary. That the company promised and agreed to pay plaintiff the amount named in the policy in the event of the accidental death of the insured. In a second cause of action, plaintiff claimed that December 1, 1933 the company issued its policy of insurance to Leon R. Evans, in which it agreed to pay a certain sum to plaintiff named as the beneficiary therein, should Mr. Evans' death be caused by accidental means. A general allegation relating to the causes of action claimed that Leon R. Evans died by accidental means July 30, 1944.

In the second complaint it was alleged that defendant, The Travelers Insurance Company, issued a policy of accident insurance to Leon R. Evans, July 8, 1938, and that plaintiff was named therein as the beneficiary. Allegations concerning the death of Mr. Evans were like those set out in the first mentioned complaint.

The companies answered the complaints by denying that the death of Leon R. Evans was caused by accident. The cases were consolidated and tried to the court sitting with a jury. The jury rendered a verdict in favor of plaintiff and against defendants.

At appropriate times counsel for defendants moved for non-suit, directed verdicts, and judgment n. o. v., or the alternative for a new trial. Each of the motions was denied, and judgment entered upon the verdicts. Defendants then appealed to this court where the cases have been consolidated for argument and consideration.

The assignments of error relate to the denial of the motions, and the action of the trial court in entering judgment upon the verdicts.

We shall italicize portions of the contracts and citations to give prominence to the dominant purposes thereof.

The undisputed facts are these: December 1, 1925, the Metropolitan Life Insurance Company issued to Leon R. Evans its insurance policy No. 1189285A, payable in cash to respondent on death of insured. The policy in addition to the ordinary life insurance provisions, contained a provision for the payment of Mrs. Evans of double indemnity in the case of the accidental death of the insured. The pertinent portions of the policy relating to death from accident provided:

'Metropolitan Life Insurance Company

'* * * in consideration of Six dollars and Twenty-Five cents, payable Annual as an additional premium herefor, such payment being simultaneous with, and under the same conditions as, the regular premium under the said policy, except as hereinafter provided,

'Hereby Agrees to pay to the Beneficiary or Beneficiaries of record under said policy, in addition to the amount payable according to the terms of said policy, the sum of Five Thousand dollars, upon receipt, at the Home Office of the Company in the City of New York, of due proof of the death of the insured, as the result directly and independently of all other causes, of bodily injuries sustained through external, violent and accidental means, provided (1) that such death shall have occurred while said policy and this Supplementary Contract are in full force, and prior to the anniversary date of said policy nearest to the sixty-fifth birthday of the insured; and (2) that all premiums under said policy and this Supplementary Contract shall have been duly paid; and (3) that said policy shall not then be in force by virtue of any non-forfeiture provisions thereof; and (4) that death shall have ensued within ninety days from the date of such injuries; and (5) that death shall not have been the result of self-destruction, whether sane or insane, or caused by or contributed to directly or indirectly, or wholly or partially, by disease, or by bodily or mental infirmity; * * *.'

The company paid the respondent all sums due in satisfaction of the ordinary life provisions contained in the policy.

July 1, 1933, the Metropolitan Life Insurance Company issued to Mr. Evans its 'Monthly Premium Industrial Policy,' #151990 M1 to Leon R. Evans. The provisions of that policy, insofar as this case is concerned are:

' Industrial Policy Accidental Death Benefit. Upon receipt of due proof that the Insured, after attaining age 15 and prior to attaining age 70, has sustained, after the date of this Policy bodily injuries, solely through external, violent and accidental means, resulting, directly and independently of all other causes, in the death of the Insured within ninety days from the date of such bodily injuries while this Policy is in force, and while premiums are not in default beyond the grace period specified in this Policy, the Company will pay in addition to any other sums due under this Policy and subject to the provisions of this Policy an Accidental Death Benefit equal to the face amount of insurance then payable at death, * * *. In any case, the amount of the Accidental Death Benefit shall be reduced by the amount of any Disability Benefit which has become payable under this Policy on account of the same injuries as resulted in death.

' No Accidental Death Benefit will be paid if the death of the Insured is the result of self-destruction, whether sane or insane, nor if death is caused or contributed to, directly or indirectly, or wholly or partially, by disease, or by bodily or mental infirmity, * * *.'

July 8, 1938, the Travelers Insurance Company issued a policy of accident insurance numbered M(1) 5315 to Mr. Evans. The policy contained the following provisions:

'* * * against loss resulting directly and independently of all other causes from bodily injuries sustained during the term of this Policy and effected solely through accidental means, * * *.

' The insurance under this Policy shall not cover hernia, nor shall it cover accident, injury, death, disability or other loss caused directly or indirectly, wholly or partly, (1) by bacterial infactions (except pyogenic infections which shall occur through an accidental cut or wound), or (2) by any other kind of disease, * * *.'

On the face of the policy there was printed the following statement:

' This Policy Provides Indemnity for Loss of Life, Limb, Sight, Time and Other Specified Losses Caused by Bodily Injuries Effected Through Accidental Means, to the Extent Herein Provided.'

At the time of his death Mr. Evans was sixty-one years of age, five feet eight inches tall, weighed one hundred fifty-five pounds, and was apparently in good health. He was employed by the city light department in the city of Tacoma. His duties compelled him to walk up and down stairs in going to and from his office on one of the upper floors of the city hall annex. He was accustomed to performing the usual duties about his home which consisted mainly of mowing the lawn. July 30, 1944 Mr. and Mrs. Evans attended church services, and then went by automobile to the Bryn Mawr Apartments located on South Fourth street, about one-half block west of K street in the city of Tacoma. South Fourth street extends in an easterly and westerly direction, and intersects K street which runs in a northerly and southerly direction. The grade on South Fourth street is one and five-tenths per cent downward toward the west side of K street. There is a slight crown in the center of K street which rises two-tenths of a foot from the west boundary to its center. East of K street, the grade on South Fourth changes to ten and five-tenths per cent down. After a stop at the apartment, Mr. and Mrs. Evans returned to the car, but the engine would not start. In order to get the engine to run, Mr. Evans released the brakes and started the car down towards K street by shoving with his foot on the pavement. The car drifted to the intersection of K street where it was halted to avoid traffic proceeding southerly on that street. After the traffic cleared, Mr. Evans got out and pushed the car to the middle of K street, where they again halted to avoid traffic. (It is to be noted that the pull or push at this stage was slightly up-grade.) When the traffic had cleared, he started again and pushed the car the balance of the way across K street to a point on South Fourth street, where the steep descending grade started. Mrs. Evans, who had been in the driver's seat, brought the car to a stop, and Mr. Evans moved toward the door of the driver's seat. As he reached the door he collapsed, and in a short time, ceased to live. The evidence shows that the automobile weighed four thousand one hundred fifty pounds.

A post mortem examination was performed by Dr. C. R. McColl. The autopsy was reviewed by Dr. Edwin W. Janes at the request of respon...