Flyzik v. Travelers Ins. Co., 29127.

• Decision Date: 03 February 1944
• Docket Number: 29127.
• Citation: 20 Wn.2d 35,145 P.2d 539
• Parties: FLYZIK v. TRAVELERS INS. CO.
• Court: Washington Supreme Court

145 P.2d 539

20 Wn.2d 35

FLYZIK v. TRAVELERS INS. CO.

No. 29127.

Supreme Court of Washington, En Banc.

February 3, 1944

Action on an accident policy by Cora Flyzik against the Travelers Insurance Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

SIMPSON P.J., and ROBINSON, J., dissenting.

Appeal from Superior Court, Snohomish County; Ralph C. Bell, judge.

Williams & Davis, of Everett, for appellant.

Clarence J. Coleman, of Everett, for respondent.

BEALS Justice.

July 25, 1941, the Travelers Insurance Company, a corporation issued to Martin J. Flyzik a policy of accident insurance whereby, inter alia, it agreed to pay to plaintiff, Cora Flyzik, the wife of the insured, $2,500 in the event of Mr Flyzik's death as the result of an accident.

Mr. Flyzik was fifty-six years of age, and weighed approximately one hundred eighty pounds. He was a safety engineer, employed as manager of the Everett Safety Council. December 25, 1941, Mr. Flyzik was apparently in good health, spent the day at home, and during a portion of the time occupied himself with some household tasks, including cleaning the basement. Between 9 and 10 o'clock in the evening he was observed by his wife and daughter, and was in good health and spirits. Between 7 and 8 o'clock the next morning, his body was discovered in his yeard, near the back of the garage, about 50 or 60 feet from the house. He was lying on the ground, his right hand outstretched. His body was resting near an ash or rubbish can, 16 inches in height and 14 inches in diameter at the top, which was kept in the basement. His head was very near the opening of the can, which was lying on its side, and his left hand was slightly under the rim, but no other portion of his body was in contact therewith. There was a noticeable abrasion on the right side of his forehead. The weather was very cold, and there was considerable ice and frost on the ground.

During the following month, Mrs. Flyzik notified the insurance company that the insured had died as the result of an accident, and the company having denied liability, this action was instituted to recover on the policy.

By its answer, the defendant admitted the issuance of the policy, and that the same was in good standing at the time of the death of the insured, but denied all the other allegations of the complaint.

The action was tried to a jury, and resulted in a verdict in plaintiff's favor. After defendant's motions for judgment in its favor notwithstanding the verdict, or in the alternative for a new trial, were denied, judgment was entered upon the verdict, from which the defendant has appealed.

The policy insured against death resulting directly and independently of all other causes from bodily injury effected through accidental means. Appellant contended upon the trial that the evidence failed to show that Mr. Flyzik died as the result of an accident within the provisions of the policy.

Appellant assigns error upon the overruling of its challenge to the legal sufficiency of the evidence and its motion for dismissal interposed at the close of respondent's case. Error is also assigned upon the denial of its request for an instructed verdict in its favor; upon the denial of its motion for judgment in its favor notwithstanding the verdict; upon the denial of its motion for a new trial; and upon the entry of judgment in respondent's favor.

Shortly after the discovery of Mr. Flyzik's body, two competent physicians were requested by respondent to perform an autopsy. The doctors perfomed a partial autopsy, signing a written report embodying their findings. In this report, among other statements, is found the following: 'No findings sufficient to account for death.'

Appellant introduced no evidence on the trial, submitting the case after the trial court had overruled its challenge to the sufficiency of the evidence.

The doctors who performed the autopsy, Drs. A. H. Gunderson and John F. Beatty, were called as witnesses for respondent, testifying, as stated in their report, that the autopsy disclosed no condition of such a nature as to account for the death of the insured. One of the doctors further testified that when he was requested to perform the autopsy he was informed that the autopsy was desired for the purpose of determining whether or not Mr. Flyzik had died of heart disease, apoplexy, stroke, or homorrhage of the brain. Both doctors testified that they found a slight bruise or abrasion on the forehead of the deceased, one of the doctors testifying that in his opinion this might have been caused by the fall, the other testifying that it was his opinion that the abrasion had been caused after Mr. Flyzik's death. One of these doctors testified that they observed no injury to the neck, but apparently they did not, in the course of the autopsy, extend the operation to that portion of the body.

Dr. William D. Smith, answering a hypothetical question propounded by respondent's attorney, testified that Mr. Flyzik had died as the result of a 'broken neck or a terrific shock--spinal cord at the base of the brain, or a dislocation causing pressure on the cord sufficient to cause his death.' In the course of the examination of this witness, the following occurred:

'Q. Now, Doctor, where a man weighed 180 1bs., what would be the effect of hitting a can with the head, in the course of falling that way? A. It would snap his head back.

'Q. And would the fact that he weighed 180 1bs. have any effect upon the amount of snap? * * * I think so.

'Q. Now, Doctor, the fact that his hand was out this way (indicates), does that have any significance? The right hand was out this way (indicates), fingers extended. A. It would indicate to me he was trying to protect himself from the fall.'

Dr. Arthur A. Thomle testified, in answer to a hypothetical question:

'A. I assume he fell, struck his head on the edge of the can; that threw his head back and either snapped it, broke the neck or dislocated, whereby there was that much pressure on the cord, and he died.

'Q. What would be the effect of a 180-1b man falling forward, and, in the process of falling, striking his head on the edge of the can. What would be the mechanism of that? [Appellant's objection overruled] A. He would simply snap his head back quickly as he fell forward with his weight. 'Q. That is, the body would be down and the head up? A. Yes. It would just throw the head back like that (indicates), quickly.

'Q. Now, Doctor, what would be the physical situation, in your opinion, with a hand outstretched that way, the right hand? A. He would throw it out to catch * * * Before he struck, in all probability, as a protector.'

The two witnesses referred to testified at some length concerning their theories as to the cause of Mr. Flyzik's death. Evidence to the effect that prior to his death Mr. Flyzik was in good health and led an active life was nowise controverted. Dr. Smith had several times taken Mr. Flyzik's blood pressure and found it normal. The tin can above referred to was about a quarter full of ashes, also containing two empty tin cans. The testimony of Drs. Smith and Thomle was to the effect that in their opinion Mr. Flyzik was carrying the can out for the purpose of emptying it; that he slipped on the icy ground and fell, and in his fall struck his head against the can and snapped his neck back, with fatal result.

Appellant argues that the record contains no evidence that the deceased struck the ash can in falling, or that the fall broke his neck; that the testimony of Drs. Smith and Thomle was based upon assumptions which were not supported by the evidence, and were a matter of conjecture and speculation. In this connection, appellant cites the recent case of Cox v. Polson Logging Co., Wash., 138 P.2d 169, 177, in which we said: 'This court has repudiated the so-called 'scintilla of evidence' rule and has repeatedly held that evidence sufficient to support a verdict must be substantial.'

Appellant also relies upon the case of Hill v. Great Northern Life Insurance Co., 186 Wash. 167, 57 P.2d 405, 408, in which we said: 'In an action upon an accident insurance policy, the burden which the injured plaintiff assumes is to show that injury or death was due to accidental or other means specified in the policy.'

This case presents a peculiar and unusual situation. Admittedly Mr. Flyzik was a strong, healthy man. The autopsy shows that there was no injury to the brain, no heart or lung condition which could cause death, and that the stomach, spleen, liver and intestines were free from any pathology. Dr. Beatty testified that in his opinion the bruise on Mr. Flyzik's forehead was made Before death, giving the reason for his opinion. Dr. Gunderson testified that he believed the forehead became bruised after death, stating the reason for his opinion. It is admitted that the ground was at least fairly well covered with ice and frost. There can be no dispute but that sometime after 9 o'clock on the right of December 25th, Mr. Flyzik carried the can from the basement of his home to a point behind his garage 50 or so feet from the house; that at the spot where his body was found, something occurred which caused his death. By the evidence, many matters which might have caused his sudden death, such as a heart or brain condition, are eliminated. We agree with the trial court that respondent's theory, as developed by the testimony, was a reasonable hypothesis, and that the jury was entitled to pass upon the evidence, and that the trial court did not err in overruling appellant's challenge to the sufficiency of the evidence and denying appellant's later motion for judgment in its favor notwithstanding the verdict. Lee v. H. E. Gleason Co., 146 Wash. 66, 262 P. ...