Guaranty Trust Co. v. Continental Life Ins. Co.

• Decision Date: 29 December 1930
• Docket Number: 22581.
• Court: Washington Supreme Court
• Parties: GUARANTY TRUST CO. v. CONTINENTAL LIFE INS. CO.

294 P. 585

159 Wash. 683

GUARANTY TRUST CO. v. CONTINENTAL LIFE INS. CO.

No. 22581.

Supreme Court of Washington

December 29, 1930

Department 1.

Appeal from Superior Court, Yakima County; Dolph Barnett, Judge.

Action by the Guaranty Trust Company, as administrator of the estate of Osborne Briscoe, deceased, against the Continental Life Insurance Company. Judgment for defendant non obstante veredicto, and plaintiff appeals.

Reversed and remanded with instructions.

Thomas H. Wilson and Cheney & Hutcheson, all of Yakima, for appellant.

Rigg Brown & Halverson, of Yakima, for respondent.

HOLCOMB J.

On February 13, 1927, respondent, a stock company, issued to one Osborne Briscoe, in conjunction with a certain magazine, a travel and pedestrian accident policy for a nominal consideration of one dollar paid by the insured effective for a term of twelve months from the date thereof and providing for continuance in effect annually thereafter by resubscribing to the magazine and for an increase in the amount insured with each renewal. On February 16, for the consideration then given the policy was renewed for another period of one year.

The policy insured Briscoe against----

'* * * death or disability resulting directly, independently and exclusively of all other causes from bodily injuries effected solely through external, violent and accidental means and sustained by the insured in the manner following:

'Part One. By the wrecking or disablement of any railroad passenger car * * *inn or on which the insured is traveling as a fare paying passenger,' etc.

'Part Two. (A) By the wrecking or disablement of any private automobile, motor driven car or horse-drawn vehicle, in which the insured is riding or driving, or by being accidentally thrown from such automobile, car or vehicle.'

Across the face of the policy in large red letters is printed: 'This is a limited policy. Read carefully.'

In December, 1928, Briscoe met his death through an accident, appellant was appointed as administrator of his estate, due proof of loss was made to respondent in accordance with the policy, payment was refused, and this action was begun to recover $2,750.

The case was tried before the court and a jury, and the jury returned a verdict in favor of appellant for $2,750. Thereafter a motion for judgment n. o. v. or in the alternative for a new trial was made, and the court granted the motion for judgment n. o. v. This appeal resulted. The facts are practically undisputed and show the following case made by appellant:

In the early part of December, 1928, deceased left his ranch west of Wapato, to go to that town, traveling east on a road running east and west from Wapato. When about three miles from Wapato a truck came by heavily laden with wood owned and driven by one Campbell with whom was riding on the single seat of the truck a man named Holt. The truck was a Ford truck with a trailer attachment, two wheels attached to the rear of the truck, not as a separate trailer, but as a part of the same vehicle, thus making a six-wheel instead of a four-wheel truck. The body of the truck was one complete body. Campbell was driving east on the same road on which deceased was walking, intending to go to his ranch situated about two miles in the direction of Wapato and one mile south of the road. When Campbell saw Briscoe walking along the road, he hailed Briscoe to give him a ride and took Briscoe upon the truck. The truck had no cab, but simply a windshield, a front seat with a backrest, and a low door on each side made of iron; the windshield being braced with steel or iron struts. On each side of the truck was a short running board made of corrugated steel about eight or ten inches wide and eighteen or twenty inches long with a rough surface. Briscoe stood on the running board on the right-hand side of the truck and hung on to the struts, leaning forward so that his body was protected by the windshield from the cold wind. Campbell drove on toward Wapato, driving between twenty and twenty-five miles per hour. The road on which the truck was being driven is a wide, improved graveled highway, but it is unpaved and has no other hard surfacing, and during the months of October, November, and December becomes quite rutty and full of chuck holes due to the heavy hauling of agricultural products from the Yakima reservation to Wapato. About two miles from where Briscoe got on the truck, the road leading south, which Campbell intended to take, turned off from the highway on which he was driving at about right angles. Just before Campbell reached that place, he told Briscoe that he was not going into Wapato and would turn south, or to his right, at that corner and when he was some distance from the corner he started to stop, applying the brakes to slow down. Just as Campbell started to slow down and while braking his truck, from the momentum of the truck, the sudden slowing down, and from the jar of the road, slightly 'bumping' the truck, Briscoe was thrown backwards from the truck. As he fell backwards his left foot caught on some part of the truck so that he was thrown under the rear wheel. The heavy artic overshoes which Briscoe wore at the time, without other shoes, were cut and his big toe injured showing a violent wrench. When he fell he sustained a severe blow on the head and then the back wheel ran over and across his chest. His chest and all the bones and organs in it were so severely crushed that the deputy coroner, who conducted the examination of him when taken to Wapato, found nothing more necessary to determine as to the cause of death than being run over and his chest crushed. As the wheels passed over Briscoe, Campbell knew he had passed over something and stopped his truck as soon as he could, some sixty feet from the corner where he intended to turn south. When he stepped out of the truck, Briscoe was lying in the road about ten feet behind the truck in a diagonal position with his head to the northwest and his feet to the southeast. Besides the injuries to the chest, there were severe bruises and contusions to the back of the head which were not carefully examined because of the apparent injuries to the chest being sufficient to cause death.

On appeal, as stated by appellant, there are two major questions to decide: (1) Did Briscoe meet his death directly, independently, and exclusively of all other causes, from bodily injuries affected solely through external, violent, and accidental means sustained by him from being thrown from the truck? (2) Was Briscoe, at the time he was thrown from the truck, within the provisions of the policy?

It is obvious that the policy in suit is practically identical with the policy before us in Wright v. Continental Life Insurance Co., 146 Wash. 665, 264 P. 410. We are not disposed to depart from the rule announced in that case that a limited accident policy against death occasioned by being accidentally 'thrown from' an automobile, does not cover a death where the deceased, while riding in a truck was killed when his head was struck by an upright of a bridge through which the truck was being...