Herndon v. Woodmen of World Life Ins. Soc., 235
| Decision Date | 17 May 1965 |
| Docket Number | No. 235,No. 2,235,2 |
| Citation | 1 Mich.App. 141,134 N.W.2d 825 |
| Parties | Josephine HERNDON, Plaintiff-Appellant, v. WOODMEN OF the WORLD LIFE INSURANCE SOCIETY, Defendant-Appellee. Cal |
| Court | Court of Appeal of Michigan — District of US |
Robert F. Cella, of Neale & Steeh, Mt. Clemens, for plaintiff-appellant.
Joslyn, Joslyn & Dean, Detroit, for defendant-appellee.
Before KAVANAGH, P. J., and McGREGOR and QUINN, JJ.
This is a suit to collect the additional amount claimed to be due on a life insurance contract which provided for such payment when the insured died as the 'result of bodily injury effected solely through external, violent and accidental means'.
The insured died as a result of injuries received in an automobile collision and it is therefore not in dispute that the 'means' of the injuries were external and violent; the question is were they 'accidental'.
It appears from the testimony that the deceased drove east on Eight Mile Road in a westbound lane and collided practically head-on with another car. Eight Mile Road is a divided highway having three westbound lanes on the north side of the median and three eastbound lanes on the south side. The deceased drove east at or above the posted speed limit in the southernmost of the westbound lanes for three miles or more and ran several red lights according to the testimony. Several cars swerved to avoid the deceased and some blew their horns to warn him.
The declaration set up the insurance, collision, injuries and death, and lack of reason of deceased to embark on a course of action voluntarily and knowingly which would lead to serious injury to himself.
The defense affirmatively asserted that the collision, injuries and death were the direct result of the voluntary, intentional and grossly negligent acts of the decedent and hence not an accident within the meaning of the contract.
The case was submitted to a jury which returned a verdict of no cause for action and it is here on appeal on four allegations of error:
1. The trial court should have directed a verdict or given judgment notwithstanding the verdict.
2. The trial court should have allowed testimony setting forth decedent's statements upon recovery of consciousness which statements were intended to show decedent had no desire to subject himself to danger.
3. The trial court should have advised counsel of the proposed action on requested instructions pursuant to GCR 1963, 516.1.
4. The trial court should not have instructed the jury that if the decedent should have or could have foreseen the danger involved in his driving the plaintiff could not recover.
The appellee maintains that the appellant's failure to object to the court's instructions as provided in GCR 1963, 516.2 precludes his assertion of error in regard thereto.
To dispose of the less complicated matters first, we say that the second allegation of error does not admit of our consideration because no separate record was made. The case of Bujalski v. Metzler Motor Sales Company (1958), 353 Mich. 493, 92 N.W.2d 60, spells out the rule in this regard and the reasons therefor, and though it deals with the former Court Rule No. 37, § 15 (1945), the provisions of this rule are now in GCR 1963, 604.
Turning to the matter of a directed verdict or judgment notwithstanding the verdict, we find no reversible error.
Whether or not the decedent's injuries were effected through 'accidental means' was properly a jury question. The answer placed in question the intent of the decedent and this could, with propriety, be decided only by the jury.
At the conclusion of testimony the court was correct in refusing the respective requests for direction of the verdict. The testimony supported the theories pleaded and from the testimony, under proper instruction, the jury could have found from the evidence that decedent's injuries were effected by accidental means or that they were not so effected.
Appellant's third and fourth assignments of error deal with the instructions. Although the appellant failed to comply with GCR 1963, 516.2, he is not precluded from making such assignments of error...
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Taylor v. Murphy, Docket No. 1681
...The only exception to this general rule is where the trial court refused to grant the opportunity to object. Herndon v. Woodmen of the World (1965), 1 Mich.App. 141, 134 N.W.2d 825. But here appellant had adequate opportunity to Even had timely objection been made we find no prejudicial err......
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People v. O'Leary, 912
...clear to the judge. See Eglash v. Detroit Institute of Technology (1965), 375 Mich. 592, 134 N.W.2d 710; Herndon v. Woodmen of the World (1965), 1 Mich.App. 141, 134 N.W.2d 825. Defendant next advocates on appeal that the trial court erred in refusing Wayne Schwaln's testimony as an expert ......
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Milauckas v. Meyer, 127
...show that the court complied with GCR 1963, 516.1 in affording the parties the opportunity to object.' Herndon v. Woodmen of the World (1965), 1 Mich.App. 141, 144, 134 N.W.2d 825, 826. The correctness of the charge to the jury is the issue now standing for decision. The majority opinion in......