Finley v. Prudential Life & Cas. Ins. Co.
| Decision Date | 31 December 1963 |
| Citation | 236 Or. 235,4 A.L.R.3d 1161,388 P.2d 21 |
| Parties | , 4 A.L.R.3d 1161 Venice W. FINLEY, Appellant, v. PRUDENTIAL LIFE & CASUALTY INSURANCE COMPANY, a Corporation, Respondent. |
| Court | Oregon Supreme Court |
John H. Horn, Roseburg, argued the cause for appellant. With him on the briefs were Horn & Slocum, Roseburg.
Eldon F. Caley, Roseburg, argued the cause for respondent. With him on the brief were Long, Neuner, Dole & Caley, Roseburg.
Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, JJ.
This is an appeal by the plaintiff, Venice W. Finley, from a judgment of the Circuit Court which dismissed her complaint. The trial was without a jury.
Plaintiff is the widow of Jack V. Finley who died in Lakeview Hospital, Lakeview, Oregon, January 25, 1962. She instituted this action to recover under a 'Hospitalization Sickness or Accidents Policy' issued by defendant to her husband as the insured. It named the plaintiff as beneficiary. The complaint alleges two causes of action under different provisions of the policy. The portions of the policy material to her cause of action are:
'Part One
'This policy insures, subject to all provisions and limitations herein contained against loss:
'(a) Resulting from accidental bodily injury sustained while this policy is in force, hereinafter referred to as 'such injury.'
* * *
* * *
'Part Two
'a. Adults. If the insured or any adult member of the family shall be necessarily confined to a hospital as a result of 'such injury' for which benefits are payable * * * the Company will pay for each and every day of such confinement, beginning with the first full day of such confinement, at the rate of One Hundred Dollars ($100.00) a week not to exceed fifty-two (52) weeks.
* * *
* * *
'Part Three
'If any member of the family, while this policy is in force, shall sustain such accidental bodily injury while driving or riding within any automobile, truck or bus and such injury resulting from the damaging of said conveyance shall directly and independently of all other causes, within 60 days result in death of such member of the family, the Company will pay the sum of Five Thousand Dollars ($5,000.00). 'Automobile, truck or bus' as used herein does not include a tractor, farm machinery, motorcycle or any type of vehicle not commonly operated on public highways.'
The parties stipulated to most of the facts; those outside the stipulation are substantially undisputed. The defendant presented no evidence.
The stipulated facts were presented to the circuit court by defendant's counsel. He began their recital in this manner:
'Our stipulation is, your Honor, that plaintiff would have evidence to this effect, and that we would have no contradicting evidence as to matters that I will now read * * *.'
We will now state facts that usher in the vital issue and will then resort to the stipulation.
The insured, Jack V. Finley, left Roseburg Thursday, January 18, 1962, in a motor truck for northern Nevada to pick up a caterpillar tractor. He was 56 years old and was accompanied by one Bob Flury, 19 years of age. Flury owned and drove the truck in which the two men rode. They found snow on the pavement before they reached Lakeview, but when they came to an area about 32 miles east of Adel, Oregon, which lies near the Nevada border, they encountered very low temperatures, a snow storm, and snow that drifted into embankments. We will now resort to the stipulation. It states that after the two men left Roseburg they 'proceeded without incident until they came upon a dirt slide partly blocking the road about 32 miles east of the community of Adel in Lake County, Oregon.' Since the 'slide' is important, we interrupt the quotation for the purpose of noting that Flury explained that there actually was no dirt in the slide. He stated that the formation was called 'a dirt slide' on account of the precipitous embankments through which the road passed. However, the snow at that place, its depth, the drifts, and the grade rendered it impossible for the truck to proceed. The stipulation continued:
'* * * the slide was encountered late at night on the 18th of January; that because of the precipitous nature of the bank, the snow and the difficulty in seeing to turn around or back up, they decided to sit in the cab of the truck until morning, at which time they turned the truck around and headed back towards Adel and Lakeview, Oregon; that during the night the storm had continued and snow had drifted across the road so as to prevent the truck's negotiating a grade on the way back to Lakeview; that they again turned around and headed in an easterly direction in an attempt to negotiate the slide area; that they were unsuccessful on the second attempt to negotiate the slide area and decided to return to a point several miles westerly of the slide area to obtain shelter in a road construction cabin they had noticed earlier; that on the way back to the cabin the snow had drifted across the road and caused the truck to become completely stalled in the snow; that the insured was not strong physically, the snow was deep, the altitude high, and the weather very cold, and it was decided to await rescue in the truck; that on the night of January 20th, the temperature dropped to an extreme low of about 55 degrees below zero, and at about 10:00 o'clock p.m. the radiator on the truck froze up while the engine was running; that the engine and heater of the truck would no longer operate because of the frozen condition * * *.'
It thus appears that the two men and their truck were in a lower area from which they could not escape. Both to the east (slide area) and to the west of them (Adel) lay higher ground, but their truck could not move up the snow covered grades in order to reach either of those areas.
We pause to observe, by way of resume, that on the night of Thursday, January 18, the slide area had rendered it impossible to drive the truck any further east. Likewise, on that evening the men could not turn the truck around. Accordingly, the two stayed all night in the truck's cab with the motor running. The next morning, Friday, January 19, Flury succeeded in turning the truck around and thereupon headed it westward for Adel, but when he came upon an adverse grade snow rendered it impossible for him to proceed further west. He then turned around and again drove eastward toward the slide area. Again the snow rendered it impossible for his truck to proceed up the grade. Once more he turned the truck around and this time headed for the construction cabin that the two men had seen. They hoped to enter it and there escape from the severe cold until a rescue party by chance would find them. When they had reached a place about one and one-half miles from the cabin the truck became completely stalled by the snow. According to the testimony which was given by Flury and which is both unchallenged and uncontradicted, the two men decided, upon that crisis, to remain in the truck, keep the motor running, and await rescue.
Before long the misfortunes of the two men took a severe turn for the worse. The new misfortunes compelled the two men to abandon quickly their present plans and seek nothing less important than the saving of their lives--if possible. The new juncture of events to which we just referred was the freezing of the truck's radiator and the disablement of its motor. The truck had ample fuel and the supply of the latter had no bearing upon the motor's cessation of operation. The hour when these disasters struck was 10:30 Saturday night. The temperature was about 54 degrees below zero. After those events occurred the truck provided no more warmth. It could no longer be occupied as a place of shelter, and as a means of transportation it was useless. The men were upon their own. The breakdown of the truck withdrew all help from them. They were in a vast uninhabited area, and assistance would come to them only in the event a rescue party was organized.
Flury, who gave testimony that is uncontradicted, swore that he noticed that after the heater stopped operation the temperature in the truck's cab dropped materially and that the precipitation on the window froze. He added, 'In fact, I started to go to sleep.' At that point the two men decided that they must abandon the truck and make their way, if possible, to the cabin which was a mile and a half in the distance. The snow on the ground lay to a depth of eighteen inches. The temperature was unbelievably low. After the men had taken only a few steps, Mr. Finley was unable to proceed. Thereupon Flury put him upon his shoulders and started for the cabin. It took him two hours to make the journey. Finley was semi-conscious when they reached the cabin.
The record warrants a belief that Finley had never contemplated that he would be cast into this area for an indefinite stay subject to intense cold and bereft of food, warmth, shelter, and transportation. Nor had he any premonition that he would find himself in a situation in which his life would be dependent upon the mercy of some rescue party. Since he had daily gone about his business, he had never thought that the depth of snow on the road and the arctic cold would render it necessary for a young man to carry him upon his back for one and one-half miles so that he could reach a cabin or otherwise freeze to death. All of these life-threatening disasters came upon the insured when the truck became disabled.
Flury found that the cabin contained no fuel, and he was compelled to pull material from the walls in order to obtain fuel. The two men spent Saturday night, Sunday, and Monday until 4:00 p. m. in the cabin. At that hour they were rescued by a highway disaster truck. The two men had had...
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