Griffin v. Prudential Ins. Co. of America

• Decision Date: 25 January 1943
• Docket Number: 6507
• Court: Utah Supreme Court
• Parties: GRIFFIN v. PRUDENTIAL INS. CO. OF AMERICA

133 P.2d 333

102 Utah 563

GRIFFIN v. PRUDENTIAL INS. CO. OF AMERICA

No. 6507

Supreme Court of Utah

January 25, 1943

Appeal from District Court, Third District, Salt Lake County; J Allan Crockett, Judge.

Action by Ethel M. Griffin against the Prudential Insurance Company of America to recover on a double indemnity provision of a life policy. Judgment for plaintiff, and defendant appeals.

Affirmed.

Van Cott, Riter & Farnsworth, of Salt Lake City, for appellant.

H. G Metos and E. A. Rogers, both of Salt Lake City, for respondent.

FAUST District Judge. LARSON, McDONOUGH, and MOFFATT, JJ., WOLFE Chief Justice, concurring.

OPINION

FAUST, District Judge.

This is an appeal from a judgment against the insurance company, the appellant herein, in favor of the beneficiary, the respondent herein, on the double indemnity provision of a life policy issued to Glen W. Griffin, the insured, who was a son of the respondent. The double indemnity provision of this policy became payable upon receipt of due proof of death as a result directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means--provided, however, that no accidental benefit should be paid if the death of insured resulted directly or indirectly from bodily or mental infirmity or disease in any form.

The principal question involved here is whether sufficient evidence was introduced by respondent to entitle her to recover under the double indemnity provision of the policy. It was admitted that the face value of the life policy had been paid in full.

Glen W. Griffin, the insured, had been surrendered by his bondsman on the afternoon of May 17, 1940, and incarcerated in the Salt Lake City jail for some offense which he had committed. There was some testimony to the effect that insured was a frail man and had been ill at home for about three days prior to his incarceration in the city jail. When he was brought to the city jail he appeared ill and weak. In the evening of the same day he was placed in a cell which was approximately 4 1/2 feet wide by 8 feet long, and which contained bunks fastened to the wall running lengthwise of the room. These bunks were supplied with mattresses and bedding. The only other article in the room was a toilet, which in the insured's cell was placed in the northeast corner. The lower bunk was approximately 2 1/2 to 3 feet from an uncovered cement floor. The cell in which Griffin was placed was one of a tier of four and opened into a runway. None of the cells were locked and the runway and all the cells were accessible to all the inmates at all times.

About an hour before the injury occurred the insured was seen by one of the inmates sitting on the lower bunk holding his head in his hands. This same inmate was sitting close to Griffin's cell in the runway reading a book when he was startled by a thud. He immediately entered Griffin's cell and found him lying on his back on the floor with his head close to the toilet. Griffin was bleeding profusely, the blood seeming to come from the back of his head. He appeared dazed and semi-conscious. He could not talk coherently. Some first aid was attempted by the inmates and the jailer was called. He attempted to administer a sedative which is sometimes given to sufferers of epileptic seizures. Griffin was in a dazed condition and would make attempts to get up and would fall down unless restrained so he was placed in the runway on a mattress to prevent further falls from the bunk. There was some testimony that he may have fallen several times during the night. No doctor was called to examine the insured until ten o'clock the next morning. At that time he was unconscious. The doctor ordered him to be taken to the County Hospital and he died there later in the day.

Dr. C. R. Openshaw, the city's physician who attended insured, stated the cause of death in the death certificate to be basal skull fracture due to a fall while in an epileptic attack.

A post mortem which was performed by this doctor the afternoon of insured's death revealed that the cause of his death was a basal skull fracture, and that he had been suffering from chronic alcoholic gastritis, atrophic cirrhosis of the liver, and a diseased condition of the brain which could have been due to chronic alcoholism; this condition if it had been allowed to progress might have affected his mental competence. That the disease of the brain would have progressed to the point where it would affect his mental competence was not certain depending upon whether insured would have changed his mode of life. The disease was not incurable. It sometimes, but not always caused convulsions similar to epileptic seizures. There was no testimony that insured had ever suffered from convulsions.

Dr. C. R. Openshaw, the city physician who attended insured, stated the cause of death in the death certificate to be a basal skull fracture due to fall while in an epileptic attack. Dr. Openshaw testified that he had arrived at his conclusion that the basal skull fracture was due to a fall while in an epileptic attack from a history of the patient obtained from persons in the jail; that there is no pathology to epilepsy and therefore he did not know whether insured suffered an epileptic attack or not; that he relied on the stories told him at the jail by the jailor and other persons there.

The insurance company moved for a directed verdict in favor of the defendant on the grounds that the evidence did not tend to prove that the death of insured occurred as a result directly and independently of all other causes of bodily injuries effected solely through external, violent, and accidental means; but that the death of insured resulted directly or indirectly from bodily or mental infirmity and disease.

This motion was overruled by the court and the case submitted to the jury on the issue of facts involved, and instructed on the law to be applied. The court also submitted to the jury a special interrogatory as follows:

"Was the fall which resulted in the final injury to the insured caused by the epilepsy or diseased condition of insured's brain?"

The jury found the answer to be "No." This interrogatory is of no value because there was no evidence as to what actually caused the fall.

Appellant has assigned as errors the failure of the court to grant its motion for a directed verdict, and in charging the jury as set forth in its instructions numbered 5 and 6. We will first determine whether the court erred in failing to grant a motion for a directed verdict in favor of defendant.

From the evidence introduced in this case it is clear that there is no dispute as to the fact that the direct cause of the death was a basal skull fracture which was the result of a fall. Griffin did not die from a disease which he had previous to the fall, nor from a disease aggravated by the fall and which in concurrence with it caused death. No one saw how this fall came about. On these facts alone, we are of the opinion there was sufficient evidence to be submitted to the jury on the question as to whether insured met his death as a result directly and independently of all other causes of bodily injuries effected solely through external, violent and accidental means. For the reader who desires a fairly exhaustive annotation of the subject, we refer him to the annotation in 131 A. L. R. commencing on page 240. The plaintiff established her burden of proof. In the case of Browning v. Equitable Life Assur. Co., 94 Utah 570, 80 P.2d 348, this court has laid down the rule that the burden of going forward with the proof is on the insurer to establish that the injury or death came within the exclusion clause of the policy. Mr. Justice Wolfe in a concurring opinion has analyzed the question as to whether the proviso in the section governing accidental death is to be treated as an exclusion clause. His analysis and conclusion in that regard are adopted and made part of this opinion.

As to the question of evidence, under R. S. U. 1933, 35-2-20 a certified copy of death is made "prima facie evidence in all courts and places of the facts there in stated." It is of course elementary that evidence of that type may be explained or contradicted by competent evidence. See Bozicevich v. Kenilworth Mercantile Co., 58 Utah 458, 199 P. 406, 17 A. L. R. 346. After the insurance company had introduced the certified copy of the death certificate in this case which gave the cause of death as basal skull fracture due to fall while in epileptic attack, the plaintiff called the doctor who signed this death certificate and he testified that he had first seen insured at about 10:30 o'clock in the morning of the day insured died; that at that time he was unconscious; that persons present in the jail had told him insured had suffered an epileptic fit and had fallen; that there is no pathology to epilepsy and the post mortem which he performed the afternoon of the same day insured died did not reveal whether or not insured had epilepsy for the above reason; that the post mortem did reveal that insured suffered from atrophic cirrhosis of the liver, chronic alcoholic gastritis and a diseased condition of the brain commonly known as "wet-brain"; that this condition of the brain sometimes produced convulsions similar to epileptic convulsions, but did not invariably do so; that the diseased condition of insured's brain was probably due to chronic alcoholism and had not extended to such a degree that it was incurable, but probably could have been cured had insured changed his mode of life. There was some affirmative evidence that insured had not been known to have suffered from convulsions at any time during his lifetime, and that the...