Fed. Life Ins. Co. v. Firestone

• Decision Date: 11 October 1932
• Docket Number: Case Number: 20635
• Citation: 1932 OK 663,159 Okla. 228,15 P.2d 141
• Parties: FEDERAL LIFE INS. CO. v. FIRESTONE.
• Court: Oklahoma Supreme Court

1932 OK 663

15 P.2d 141

159 Okla. 228

FEDERAL LIFE INS. CO. v. FIRESTONE.

Case Number: 20635

Supreme Court of Oklahoma

Decided: October 11, 1932

Syllabus

¶0 1. Trial -- Effect of Demurrer to Evidence or Motion for Directed Verdict.

In a law action a demurrer to the evidence or motion for directed verdict admits all the facts which the evidence in the slightest degree tends to prove, and all inferences or conclusions that may reasonably and logically be drawn therefrom.

2. Insurance--Accident Insurance -- Policy Held to Require Proof That Injuries From Accident Caused Death of Insured Directly and Independently of all Other Causes.

Under a limited accident insurance policy which does not indemnify against death or injuries effected by all accidental means, with certain exceptions, but which provides that the insurer will pay for certain injuries or death "resulting directly and independently of all other causes, from bodily injuries sustained through external, violent and accidental means, * * *" sustained under certain specified accidents, named therein, and specifically provides it does not cover death or loss caused by any other means or conditions than those set out therein, the burden is upon the plaintiff to not only prove that the accident to insured was covered by the policy, but that the injuries received in the accident were the cause of death, directly and independently of all other causes.

3. Same.

The rule of proximate cause as applied ordinarily in negligence cases does not apply in construing liability under the policy in question in this case. The question presented under the policy in question herein was whether the injuries caused the death of the insured directly and independently of all other causes.

4. Appeal and Error--Prejudicial Error in Instructions.

Where erroneous instructions to the jury, which were duly objected and excepted to, and called to the trial court's attention also by requested instructions, which requested instructions were refused, taken in connection with the other instruction given, the evidence admitted, discloses that the losing party has been deprived of a fair trial, the cause will be reversed for new trial because of the error in the instructions given.

5. Appeal and Error -- Improper Argument not Reviewed for Lack of Proper Record.

Alleged misconduct of the attorney for the prevailing party in making his argument to the jury will not be reviewed by this court, where such statements are not incorporated in the case-made by bill of exceptions or otherwise, except by affidavits filed in connection with motion for new trial.

Appeal from District Court, Creek County; Thos. S. Harris, Judge.

Action by J. D. Firestone against Federal Life Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Suddath & Finch, Hughes & Ellinghausen, and J. F. Kutak, for plaintiff in error.

Wallace & Wallace and Wayne H. Lasater, for defendant in error.

CLARK, V. C. J.

¶1 This action was commenced in the district court of Creek county by defendant in error, J.

¶2 D. Firestone, against plaintiff in error, Federal Life Insurance Company, a corporation, on an accident insurance policy. The verdict of the jury was in favor of plaintiff below. Motion for new trial was overruled, exceptions saved, notice of appeal given, and the defendant below brings the cause here for review. The parties will be designated as they appeared in the trial court.

¶3 The plaintiff's petition alleged, in substance, that on the 16th day of April, 1927, defendant entered into a contract with one Jack Gordon Firestone which insured him against loss of life by accident, and such insurance being made in favor of plaintiff, J. D. Firestone, a brother of the insured. That on the 14th day of July, 1927, while said insurance was in full force and effect, the insured was operating a motor vehicle which was accidentally overturned, thereby injuring insured, and from said injuries the insured on the 26th day of July, 1927, died; that the external, violent, and accidental injuries caused by the overturning of said automobile were the proximate cause of the death of the insured, and that same was without any fault or negligence of deceased. That plaintiff, the beneficiary, within the time provided in the policy, notified in writing the defendant and demanded payment of $ 2,000 under the terms of the policy, which was refused. Attached a copy of the policy as exhibit to the petition. Prayed for the said sum of $ 2,000 interest and cost.

¶4 The answer of defendant was a general denial, and specially denied that it owed plaintiff or anyone else anything for the death of said J. G. Firestone, for the reason the contract sued upon, among other things, provides:

"Against death or disability resulting directly and independently of all other causes from bodily injuries, sustained through external, violent and accidental means." "Averred that the insured did not die from bodily injuries sustained through external, violent, and accidental means, directly and independently of all other causes."

¶5 That the insured, after he received some bruises and minor injuries in the wrecking of the truck which he was driving on the 14th day of July, 1927, came to Tulsa, which is 100 miles away from the place he was injured, and imbibed heavily in alcohol or intoxicating liquors and from the time he was injured until he died he remained drunk, and wholly neglected to have his injuries treated by a physician or surgeon until about the 25th day of July, 1927, when he became partially unconscious, and then the attendants at the hotel where he was staying sent for a doctor. That he never rallied, but grew worse until he died the 26th day of July, 1927. That the proximate cause of his death was the excessive use of alcoholic liquors.

¶6 Plaintiff filed reply by way of denial of the affirmative matter set out in the answer. Alleged that the insured died from injuries sustained by reason of the overturning of the automobile; and specifically denied that the insured died from alcoholic poisoning.

¶7 At the close of plaintiff's evidence the defendant demurred thereto, which was overruled, to which defendant excepted, and thereupon defendant produced its evidence.

¶8 At the close of all the evidence in the case, defendant requested the court to instruct the jury to return a verdict in favor of defendant, which was refused, to which defendant excepted.

¶9 The insurance contract under consideration provided as follows:

"In consideration of the payment of the premium of one dollar ($ 1.00) the Federal Life Insurance Company hereby does insure Jack Gordon Firestone against death or disability resulting directly and independently of all other causes, from bodily injuries sustained through external, violent and accidental means (subject to all limitations and conditions herein contained), for a term of twelve (12) months beginning at noon, standard time of the day this policy is dated and at the place of residence of the insured.

"If the insured shall suffer any of the specific losses set forth in parts I, II, III, or IV, the company will pay the sum set opposite such loss if the injury causing such loss is sustained in the manner described in said parts. * * *"

¶10 Part I set out the amounts of losses payable when sustained by wrecking or disablement of a railroad passenger car or street, elevated or underground railway car, passenger steamship or steamboat.

¶11 Part 2 set out the amount for losses payable when sustained by the wrecking or disablement of any public omnibus, taxicab, or automobile stage plying for public hire which is being driven or operated at the time of such wrecking by a licensed driver.

¶12 Part 3 provided:

"The Company will pay for loss of

¶13 Life $ 2,000.00

* * * "Sustained by the wrecking or disablement of any vehicle or car operated by any private carrier or private person in which the insured is riding or by being accidentally thrown therefrom. * * *"

¶14 Part 4 set out the amounts for losses payable when sustained by being struck or run over while in or upon a public highway by any public or private vehicle; by being struck by lightning; by cyclone or tornado; by collapsing of the outer walls of a building; by drowning; * * * by the burning of a public building in which the insured shall be at the beginning of the fire.

¶15 Under the general provisions of the policy the contract provides:

"This insurance does not cover:

"(A) Suicide or attempt thereat while sane or insane.

"(B) Death or loss while riding or driving in races or while testing any automobile on tracks or speedways.

"(C) Death or loss while in or on any vehicle or mechanical device for aerial navigation, or in falling therefrom or therewith or while operating or handling any such vehicle or device.

"(D) Death or loss while in, on, or operating or handling any submarine.

"(E) Death or loss while outside the territorial limits of the continental United States of America and the Dominion of Canada.

"(F) Death or loss caused by any other means or conditions than those set forth in parts I, II, III, or IV. * * *"

¶16 Plaintiff in error's specification of error No. 1 reads as follows:

"The undisputed evidence discloses, both on cross-examination of plaintiff's witnesses in his case in chief and by the undisputed evidence on the part of the defendant, that the death of the insured was caused by alcoholic poisoning contributed to by the injuries, viewing the testimony in the most favorable light for the plaintiff; and the court erred in refusing to sustain a demurrer to plaintiff's evidence, and failing that, erred in refusing to peremptorily instruct the jury to return a verdict for the defendant."

¶17 The plaintiff in error admits that the insured received some bruises and abrasions about his head and body in an automobile accident about July 14, 1927, and that he came to his hotel, where he stayed until July 26, 1927, when he...