Malanga v. Royal Indem. Co.

• Decision Date: 18 January 1967
• Docket Number: No. 8878--PR,8878--PR
• Citation: 101 Ariz. 588,422 P.2d 704
• Parties: Mary M. Ellis MALANGA, Appellant, v. ROYAL INDEMNITY COMPANY, a foreign corporation, Appellee.
• Court: Arizona Supreme Court

Page 704

422 P.2d 704

101 Ariz. 588

Mary M. Ellis MALANGA, Appellant, v. ROYAL INDEMNITY COMPANY, a foreign corporation, Appellee.

No. 8878--PR.

Supreme Court of Arizona, In Banc.

Jan. 18, 1967.

Rehearing Denied Feb. 21, 1967.

Murphy & Vinson, and Carl E. Hazlett, Tucson, for appellant.

Lesher, Scruggs, Rucker, Kimble & Lindamood, Tucson, for appellee.

UDALL, Justice.

This matter is before us on petition to review the decision of the Court of Appeals, Division 2, reported in 4 Ariz.App. 150, 418 P.2d 396.

The appellant, Mary M. Ellis Malanga, instituted this action in superior court against the Royal Indemnity Company, seeking to recover $30,000 allegedly due to appellant as beneficiary of an accident insurance policy which the Company had issued to Jack S. Ellis, who at the time of his death was the husband of appellant. The trial court, sitting without a jury, rendered judgment for the Company and the Court of Appeals affirmed.

The following facts are undisputed:

(1) In March of 1963 Jack Ellis died from on over-ingestion of barbiturates and alcohol, the latter being contained in an intoxicating beverage or beverages which were consumed by the deceased.

(2) The deceased Did not consume a quantity of alcohol which alone would have been sufficient to cause death.

(3) The deceased Did not consume barbiturates in an amount sufficient to cause death.

(4) Death resulted from the combined effect of the alcohol and the barbiturates upon the central nervous system of the deceased. Briefly, this effect was described by the following question to which plaintiff's witness responded on cross examination:

'Q. So when we talk about this particular death, we are talking about a man who took enough alcohol and barbiturates into his system to a point where his heart stopped beating, is that essentially it doctor?

'A. Yes. Yes.'

In addition to the above facts which are established by the evidence, the record which was before the trial court indicates that there is no issue of suicide in this case. It appears that the parties were and on this appeal are in agreement as to the following points:

(1) Jack Ellis voluntarily and intentionally consumed the intoxicating beverage or beverages which contained the alcohol, and he voluntarily and intentionally consumed the three or four pills which contained sodium amytal.

(2) The deceased did not intend to injure himself or to cause his death; apparently he did not suspect, or know, or have any reason to know that consumption of the alcohol and barbiturates in the quantities taken would result in injury or death.

On this appeal, as in the trial court, the point of difference between the parties is whether the circumstances described above bring the death of Jack Ellis within the following terms of the accident insurance policy:

'This insurance is against loss * * * resulting directly and independently of all other causes from accidental bodily injuries sustained during the term of the policy * * * (emphasis added).

'If within ninety days after the date of accident * * * such injury shall result in the Insured's loss of life the Company will pay the amount specified in the Schedule of Benefits ($30,000).'

With reference to the above provisions of the policy it is the Company's position that the death of Jack Ellis did not result from 'accidental bodily injury', as required by the first paragraph quoted above. Of course, appellant's contention is that the death was the result of such injury. As stated by the appellant, the question for our determination is: 'Whether the death of Jack Ellis resulted directly and independently of all other causes from accidental bodily injuries?'

The question has been argued and must be answered in two parts: (1) did Jack Ellis suffer 'bodily injuries', (2) if so, were the injuries 'accidental'? In the absence of findings of fact we assume that the trial court determined both issues in favor of the Company.

As to the question of whether there was bodily injury the following testimony of appellant's witness, elicited on cross-examination, is pertinent:

'Q. Doctor, tell us what happens to a person who has taken an overdose of alcohol, ethyl alcohol and barbiturates. What happens to his system?

'A. Well, as I indicated, these act primarily, this is in a sense not true, it acts primarily on the brain, brain stem * * * The primary site of action is the central nervous system. It is a target organ. It causes a depression of the brain stem. In the brain stem are two important centers, one that controls respiration and one that controls heart rate. This is why we can breathe and out heart will beat automatically. Whether you like it or not, you breathe, your heart beats * * * Now when you start raising the level of either of these two agents, these centers which normally have an automatic regulated stimulus, become interfered with so that the stimulation that normally occurs becomes depressed as the level of these agents goes higher and you can eventually completely remove the stimulus * * * so there is no stimulation to respiration and there would be no stimulation to heartbeat so that death then occurs by depressing these areas sufficiently so that the heart rate would be slow enough or the respiratory center would be slow enough so that the rate of breathing or the heartbeat rate would not be sufficient to sustain life.

'Q. Now was this cause of his death, in your opinion, traumatic in nature?

'A. No, sir.

'Q. There was nothing traumatic that you found in your examination which, in your opinion, contributed to his death?

'A. That's correct.

'Q. In your opinion, was his death due to a bodily injury?

'A. No, Sir.'

The above testimony indicates the general nature of the Company's argument that there was no bodily injury, namely, that unless there is a cut, or a bruise or a rupture of some part of the body, then there has been no bodily injury within the meaning of the accident policy in this case. We cannot agree with this contention. If the Company had intended to limit the words 'bodily injury' to injuries which were traumatic in nature, it might easily have done so by simply inserting such a provision in the policy. At best, the fact that such limiting provision is not present makes it uncertain whether the phrase 'bodily injury' is so limited. When the language of such a policy is unclear this...