Johnson v. Business Men's Assur. Co. of America

• Decision Date: 15 March 1951
• Docket Number: No. 31448,31448
• Citation: 38 Wn.2d 245,228 P.2d 760
• Parties: JOHNSON, v. BUSINESS MEN'S ASSUR. CO. OF AMERICA.
• Court: Washington Supreme Court

Page 245

38 Wn.2d 245

228 P.2d 760

JOHNSON, v. BUSINESS MEN'S ASSUR. CO. OF AMERICA.

No. 31448.

Supreme Court of Washington, Department 2.

March 15, 1951.

Ward & Barclay, Sedro Woolley, for appellant.

Welts & Welts, Mount Vernon, for respondent.

HAMLEY, Justice.

Carl J. Johnson collapsed and died shortly after emerging from his burning home which he had re- entered for the purpose of removing furniture and belongings. His son, Robert Edward Johnson, as beneficiary of an accident insurance policy, brought this action to recover two thousand dollars under the death indemnity provision. The policy insured Johnson '* * * against loss resulting directly and independently of all other causes from bodily injuries * * * effected solely through accidental means * * *.'

Defendant insurance company denied liability on the ground that death did not result from causes covered by the above policy provision. The primary question posed by the pleadings, therefore, was whether Johnson's death was effected through accidental means. The action was tried to a jury.

The evidence, when viewed in a light most favorable to plaintiff, discloses the following facts: On August 2, 1948, Johnson was a man fifty-eight years of age, in vigorous health, and accustomed to heavy physical exertion in his work and diversions. He lived with his wife, Mrs. May Johnson, and her son-in-law, George Dow, in the family home at Bay View, Skagit county, Washington. He came home from work about five o'clock p. m. on that day. A few minutes before six o'clock he sat down to dinner with his wife and Dow. About twenty-five or thirty minutes later, while they were still at the dinner table, Mrs. Johnson remarked that she heard a noise upstairs. Dow and Johnson left the table immediately and went upstairs, Dow in the lead. When Dow reached the head of the stairs he discovered that smoke and flame had engulfed the whole upstairs. He shouted, 'The house is on fire!' and stayed at the head of the stairs for a few seconds, tossing down clothing and other articles within easy reach.

When Johnson heard that the house was on fire, he immediately turned and went back downstairs. There was no local fire department, and Johnson apparently realized that there was no chance of saving the house. He and a next-door neighbor, Tom Look, began moving articles out of the kitchen, including a heavy refrigerator. There was little, if any, smoke in the kitchen at this time. They made from six to eight trips back into the kitchen, which was located on the north side of the house. There was apparently nothing wrong with Johnson while they were working in the kitchen.

He and Look then went to the south side of the house and entered a utility door which led to a bedroom. Here they removed a dresser and other articles of bedroom furniture, bedding and clothes. Johnson made from four to six trips into the house through the south door. Johnson son had been working fast, and seemed to be tired when he started working at the south side of the house. There were several men then working at the south side of the house. Johnson and the other workers coughed some, due to the increasing density of the smoke.

The fire was directly over the south bedroom when Johnson and the others began carrying things from that room. However, flame had not yet broken into the room, and there was no great amount of smoke. The smoke then began entering the room and became progressively worse as Johnson and the others made trips back into the bedroom. The workers knew the smoke was rolling in, and it finally became so bad that they could not open their eyes as they groped around for articles to remove. Heat also began entering the room as the work continued.

After making several trips into the south bedroom, Johnson apparently interrupted his work in this part of the house and went around to the east side, where Dow was removing possessions from an attached woodshed. At this time the ceiling and walls of the woodshed were in flames and the smoke was very thick. Johnson helped remove a dresser from a point near the door of the woodshed. Dow described Johnson's condition at this time as follows:

'Q. What was Carl's condition at that time? A. Well, he was what I would call just like an ordinary person would be with a fire. He was excited and he seemed very much exhausted. He had been working hard and he seemed--well, just not exactly like himself. He was worked up and had been working hard--well, exhausted and just upset.'

Johnson then returned to the south side of the house. He remarked to one of the others that 'it isn't too bad in the bedroom,' and then re-entered the house through the south door. Raymond Nelson and Grover Walker followed Johnson into the house on this last trip, but did not go as far into the bedroom as Johnson did. The smoke was then rolling so thick in the house that it was impossible to see. The whole house was ablaze, and the walls and roof were beginning to come down. Johnson groped around in a closet and then emerged, carrying an article, followed by Nelson and Walker carrying a chiffonnier.

Johnson turned around, apparently intending to go back into the house. Walker and Jack Whalen grabbed Johnson, however, and would not permit him to re-enter the building. The three men were then standing only ten or fifteen feet from the building, and it was so hot they had to move back. The other two men assisted Johnson, as his legs seemed to give way. At this time Johnson was apparently tired and excited, his eyes were red from smoke, and he was black and dirty with soot. All of the men were coughing because of the smoke. The roof then caved in, and along the edge of the roof the outside boards were starting to fall off. The ceiling of the south bedroom was also coming down, the heat had become intense, and the house seemed ready to explode. All of the witnesses agreed that it would then have been impossible to go back into the house.

While Johnson and the others stood some forty or fifty feet from the burning house, Johnson told how the fire had atarted. He then remarked, 'If it wasn't for the smoke I could take it,' and immediately collapsed onto the ground. He was not gagging, choking, or having a long, continuous coughing spell at this time, but had been coughing some, as had the others present. Dr. John W. Wallin was immediately summoned and, upon his arrival a few minutes later, Johnson was pronounced dead. It was estimated that approximately thirty minutes had elapsed between the discovery of the fire and Johnson's collapse, which had occurred about five minutes after Johnson last emerged from the house.

The jury returned a verdict for plaintiff, but the trial court entered judgment for defendant notwithstanding the verdict. Plaintiff has appealed, assigning as the only error the granting of the judgment n. o. v.

The rule is now firmly established in this state that, in order to recover under a policy insuring against death or injury by accidental means, (1) it is not enough that the result was unusual, unexpected or unforeseen, but it must appear that the means were accidental; and (2) accident is never present when a deliberate act is performed, unless some additional, unexpected, independent, and unforeseen happening occurs which produces or brings about the result of injury or death. Evans v. Metropolitan Life Insurance Co., 26 Wash.2d 594, 174 P.2d 961; McMahan v. Mutual Benefit Health & Accident Ass'n, 33 Wash.2d 415, 206 P.2d 292.

Applying that rule to the instant case, the primary question presented is whether there was substantial evidence from which the jury could have found thatJohnson's death was produced or brought about by an unexpected and unforeseen happening additional to and independent of Johnson's deliberate acts in connection with saving his household goods during the fire.

Appellant does not appear to contend that there was any unexpected and unforeseen happening of this kind prior to Johnson's last entry into the house. Nor would the record support such a contention, since there is no evidence whatever of any such incident up to that time. Johnson was working rapidly in various parts of the house, and was evidently becoming more excited and exhausted as time went on. The progress of the fire, however, was readily observable, and there is nothing to indicate that, prior to his last trip into the house, Johnson was confronted with any hazard or danger in the way of smoke, flame, heat, or other factor which he did not foresee or anticipate.

It is argued, however, that there was evidence sufficient to go to the jury that Johnson came into contact with an unexpected lethal concentration of smoke and shortage of oxygen on his last trip into the house, and that this was additional to and independent of Johnson's deliberate act of re-entering the house. In this connection, appellant calls attention to McCarron v. John Hancock Mutual Life Ins. Co., 156 Pa.Super. 287, 40 A.2d 118, where recovery under an accident insurance policy was permitted upon a showing that the insured was suddenly exposed to a deadly concentration of formaldehyde fumes upon opening an enclosure around a paper-coating machine, for the purpose of making repairs. Appellant also relies upon Dalbey v. Equitable Life Assurance Soc., 105 Mont. 587, 74 P.2d 432, where recovery was permitted on a similar policy, upon a showing that a fireman had been confronted with an unusual concentration of smoke and gas as he climbed to the top of a sixfoot fence.

Respondent resists this argument on several grounds, one being that there was no proof that Johnson's death resulted from coming into contact with smoke and lack of oxygen during his last trip. This calls for an examination of the evidence as to the cause of death.

Medical testimony as to the cause of death was received from two doctors who were called by appellant. Neither had treated Johnson in his lifetime, and there was no post...