Graham v. New York Life Ins. Co.

• Decision Date: 05 August 1935
• Docket Number: 25562.
• Citation: 182 Wash. 612,47 P.2d 1029
• Parties: GRAHAM v. NEW YORK LIFE INS. CO.
• Court: Washington Supreme Court

47 P.2d 1029

182 Wash. 612

GRAHAM v. NEW YORK LIFE INS. CO.

No. 25562.

Supreme Court of Washington

August 5, 1935

Department 2.

Appeal from Superior Court, King County; Chester A. Batchelor Judge.

Action by Ruth Graham against the New York Life Insurance Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Wright Jones & Bronson, of Seattle, for appellant.

Bell McNeil & Bowles and Hamlet P. Dodd, all of Seattle, for respondent.

STEINERT Justice.

This is an action to recover upon a life insurance policy. Trial Before the court, sitting with a jury, resulted in a verdict for plaintiff. From a judgment on the verdict, defendant has appealed.

September 26, 1922, the appellant insurance company issued to Joseph W. Graham a policy of insurance upon his life, in the face amount of $1,000, payable at his death to his wife, the respondent herein. The contract of insurance contained a clause which provided for payment of double the face of the policy upon due proof that death of the insured had resulted directly, and independently of all other causes, from bodily injury effected solely through external, violent, and accidental cause, and that such death had occurred within sixty days after sustaining such injury. The double indemnity clause further provided, however, that such benefit should not apply if the insured's death resulted from self-destruction, whether sane or insane, or from physical or mental infirmity, or directly or indirectly from illness or disease of any kind.

On March 25, 1933, while the policy was in full force and effect, the insured met his death as the result either of falling, or else of leaping, from the sixteenth floor of the Medical & Dental building in Seattle onto the roof of the two-story portion of that building. The respondent claimed that the death resulted from falling and was accidental, under the terms of the policy, thus entitling her to the double indemnity. The appellant claimed that the death was self-inflicted by jumping or leaping from the fire escape on the sixteenth floor, and that, therefore, only the face amount of the policy was due. In June, 1933, the appellant, through its agent, delivered to respondent its check for the face amount plus interest and accrued dividends. Respondent refused to accept the check because of a notation thereon that it was in full settlement of all claims under the policy. The agent then, at respondent's direction, conferred with respondent's attorney with reference to the effect of the check upon the right of the respondent to sue upon the double indemnity provision. The attorney finally accepted the check and surrendered the policy to the agent, but only after the agent had signed and given to the attorney a receipt which recited that respondent had received nothing in settlement of the double indemnity provision, and that respondent did not waive any claim or right that she might have under that clause. The check was subsequently cashed by the respondent. Thereafter the respondent began this action to recover the sum of $1,000 which represented the amount of the double indemnity over and above the face of the policy.

Upon its appeal, appellant assigns a number of errors. We think, however, that its various contentions fall under one or another of three general heads.

The first contention of appellant that we shall notice is that there is no evidence or reasonable inference from evidence to justify the verdict, that the verdict is against the weight of the evidence, and that substantial justice has not been done. This contention underlies appellant's motion to dismiss, motion for directed verdict, motion for judgment notwithstanding the verdict, motion for new trial, and its assignment of error on the entry of judgment for respondent.

There is very little, if any, dispute as to the evidence. The disagreement is, rather, over the conclusions to be drawn therefrom. Mr. Graham was 59 years of age at the time of his death. He was a teacher by profession and for years just prior to his demise had been a principal in one of the public schools in Seattle, at a salary of about $3300 a year. He was married and had two grown children, both of whom were university graduates and were self-supporting. He owned his home, free and clear of encumbrance, and had no debts. His home life appears to have been ideal in every respect. He was an active church member, was given to philosophical and religious discussion concerning the future life, and held scruples against suicide. During the two years prior to his death, Mr. Graham suffered attacks of indigestion, constipation, and dizziness. His eyes and ears had also given him some trouble. All, or most, of his symptoms indicated a toxic condition of his system. The combined effect of his various ailments caused him to worry about himself at times, and it seems that he even harbored the suspicion that he might have cancer. He had consulted several physicians during the two-year period, and in February, 1933, a specialist had tentatively diagnosed the case as Meniere's disease, a disease of the ear attendant with some of the symptoms already stated. His general physician then sent him to a hospital where X-rays were taken. The pictures disclosed a diseased appendix and an adhesion causing constipation. The patient was assured, however, that he did not have cancer, and this assurance gave him considerable mental relief. An operation for appendicitis and adhesions was advised and on February 23, 1933, such operation was performed. Mr. Graham returned home from the hospital on March 4th, and from that time on was making a normal and satisfactory recovery, and there was no further dizziness.

On the day of his death, March 25, 1933, Mr. Graham left his home at about 8:30 o'clock in the morning to go down town to see his doctor and also to have his eyes tested for a change of glasses. He was still weak from his operation but was steadily improving. Because of his weakened condition, however, he decided not to drive his automobile, but took a street car instead. After reaching the business district of the city, he phoned to Mrs. Graham as she had requested him to do.

It appears that Mr. Graham, after telephoning to his wife, immediately went to the Medical & Dental building, where he entered an elevator and rode to the sixteenth floor. Whether he had an engagement there, is not shown. The elevator operator, who, so far as is known, was the last person to see him alive, testified that Mr. Graham was very nervous while in the elevator, paced back and forth, telling her repeatedly that he wanted to get out at the sixteenth floor, and actually attempted to get out at every stop that the elevator made. In explanation of this apparent nervousness, there was positive testimony to the effect that Mr. Graham had an aversion to riding in elevators because he felt hemmed in, and that after riding in one he would always seek fresh air. After Mr. Graham had left the elevator at the sixteenth floor, the operator proceeded to the floor above and then back down to the ground floor without any intermediate stop. As she passed the third floor level, she heard a heavy thud on the adjoining roof. She recognized the peculiar sound because there had been several suicides at the same place within the preceding few months. The maintenance manager of the building also heard the body strike the roof and he, too, recognized the sound. He at once instructed his clerk to call the coroner while he himself proceeded to the portion of the roof where the body lay. No one appears to have seen the body in its fall or flight. The coroner, on arrival, examined the body and found that death was the result of its striking the roof. Later, Mr. Graham's cane was found on the sixteenth-floor landing of the fire escape.

The coroner found in one of Mr. Graham's coat pockets a number of papers, including an envelope on which was partly printed, and partly written, the following inscription: 'What's a poor body without a mind. My ears are ringing me to my doom.' Appellant contends that this note indicated an intention to commit suicide. Respondent testified that the coat which Mr. Graham wore on that day was one that he had not worn for several weeks Before . She also testified that Mr. Graham had read this particular inscription to her several months Before , as an illustration of some poor fellow who needed medical treatment rather than punishment. The evidence shows that Mr. Graham was a collector of striking epigrams and quotations, taking them from magazines, newspapers and other sources, and making use of some of them in his school work. There was no evidence that the particular lines had been recently composed by Mr. Graham, nor was any lead pencil found upon his person at the time of his death.

There was considerable evidence concerning the construction of the fire escape, both as to its platforms and as to the stairways between them. Measurements and dimensions in detail were given by several witnesses. It was the contention of appellant that the construction of the apparatus rendered it impossible for one to fall out of it unintentionally and accidentally; it was also appellant's contention that the position of the body, considered in connection with the immutability of physical laws, established conclusively that Mr. Graham had climbed up onto the railing and deliberately jumped outward into space. On the other hand, it was the contention of respondent, based upon the same physical facts that Mr. Graham in some way stumbled and fell from the stairway of the fire escape, over the railing, and that the body was deflected somewhat from the direction in which it started by some interference, such as striking or grasping at the...