Metropolitan Life Ins. Co. v. Jenkins

• Decision Date: 05 March 1943
• Citation: 12 So.2d 374,152 Fla. 486
• Parties: METROPOLITAN LIFE INS. CO. v. JENKINS.
• Court: Florida Supreme Court

12 So.2d 374

152 Fla. 486

METROPOLITAN LIFE INS. CO. v. JENKINS.

Florida Supreme Court

March 5, 1943

Rehearing Denied April 5, 1943.

Appeal from Circuit Court, Dade County; George E. Holt judge.

L. S. Julian and Shutts, Bowen, Simmons, Prevatt &amp Julian, all of Miami, for appellant.

L. Raymond O'Steen, of Miami, for appellee.

SEBRING, Justice.

Appellee sued on the accident features of two policies of insurance which insured her son, Howard K. Jenkins, against death sustained through external, violent and accidental means, not contributed to directly, or indirectly, or wholly or partly by disease or bodily or mental infirmity. Verdict was for appellee. The appellant appeals.

Howard K. Jenkins was the owner of a comparatively new automobile. On August 2 1941, he was driving the car south along an asphalt highway, at about 6 o'clock in the evening. The automobile suddenly left the highway, struck a tree 24 paces from the point where it left the road, plowed through a field of rocks, weeds and underbrush, jumped a railroad track, and plunged into a rock pit of water 20 feet in depth, 130 paces away. Nobody saw the car leave the highway; but two witnesses saw it as it plowed through the field.

Before the car became completely submerged, and while his head was still above water, insured's left arm was seen to be 'twitching and jerking' to such an extent that one of the witnesses, who had swum to the rescue, was of the opinion that Jenkins was trying to open the car door and escape. While alongside the car, the witness yelled to the insured but received no answer, the insured being apparently dead, dying, or unconscious. Being unable to effect a rescue, the witness swam back to shore. Shortly afterward, the automobile, with its victim in it, sank out of sight.

The road bed upon which insured had been driving was smooth, straight, dry, and level. The day was clear and visibility was good. There were no obstructions on the highway at the point where the car left the road. Neither were there any skid marks, broken glass, or other signs indicating that the brakes had been suddenly applied, or that the automobile had come into collision with another object.

Later in the evening, the submerged automobile was raised from the rock pit. When insured's body was finally removed from the car, there was a bruise and a laceration on his forehead, and his neck was broken. Found on the body was a card, which read as follows: 'Howard Jenkins

611 S. 4th Place

Hialeah, Florida.

'Subject to convulsions, in case of an attack no doctor needed. Let me stay quietly until I awake naturally.'

The burden of proving that death was within the terms of the policy rested upon the plaintiff. Under the pleadings and contract of insurance, it was necessary for plaintiff to prove not only that death was by external, violent and accidental means, but that it was not contributed to by disease or bodily or mental infirmity. Appellant contends that this has not been done. Its theory is that as insured was driving along the highway he was suddenly stricken with a convulsion, rendering him powerless to control his vehicle, with the result that the accident occurred. To sustain its contention appellant produced two physicians, who testified as witnesses.

Dr. Paul Kells testified that he examined Jenkins professionally in 1934. From his diagnosis made from observation of the patient, and from the history of the malady given by the father and mother of deceased, he was of the professional opinion that Jenkins had idiopathic epilepsy of the grand mal type. He had never witnessed an epileptic seizure of the partient; and readily conceded that this would be necessary before the diagnosis could be absolutely confirmed. Idiopathic epilepsy of the type found was likely to produce unconsciousness, and convulsions, at any time, without warning. For the first year of the treatment, Dr. Kells had seen the patient on an average of once every two months. From the last time he had treated him until just shortly before his death in 1941, two years would have elapsed without Dr. Kells having seen the patient. In July, 1941, Jenkins had again called on Dr Kells. At that time he had told the physician that he had had ten seizures from the time his trouble had first begun. Three of these had occurred during the first six months of 1941.

Upon a hypothetical question framed upon the assumption that Jenkins was suffering from idiopathic epilepsy, and from the testimony supporting defendant's theory of the case, the witness was allowed to testify, over objection, that in his opinion Jenkins must have been experiencing a grand mal epileptic seizure, when his car left the highway. With all candor, the witness admitted that such opinion could be only a guess, since he was not present at the time of the event.

Dr. Marvin Smith testified that he had examined and treated Jenkins in 1937. His diagnosis did not agree with the diagnosis made by Dr. Kells. He found Jenkins suffering with chronic colon infection accompanied by constipation. The patient was not suffering from epilepsy. It is quite common for persons suffering with bowel or colon trouble to have mental disturbances. It is not uncommon for them to have convulsions; but the convulsions are much less severe than with epileptic patients. The patient rarely becomes unconscious, although in some instances the patient will be irrational and unconscious for a short period of seconds or minutes.

Under treatment, Jenkins' condition rapidly improved. The patient was in very good condition, when Dr. Smith last treated him.

The insurer strenuously contends that this testimony, together with the identification card found on the body of Jenkins at the time of death, and the factual conditions surrounding the accident, completely repel the idea that death was solely by accidental means, within the terms of the policy. It theorizes that the events resulting in death must have been set in motion by a sudden epileptic seizure producing unconsciousness, or convulsions, or both, with the result that the car went out of control. According to its contention, the 'jerking or twitching' of deceased's arm, as he lay unconscious or dying in his car in the rock pit, was a factual demonstration of the fact that this must have occurred.

The plaintiff explains the presence of the identification card on the body of deceased by the fact that when her son first began having 'mental disturbances' in 1935, she had insisted that he carry such a card on his person. Her reason for doing this was that in case of sudden illness, his name and the nature of his condition would be readily known to those who might attempt to render aid. After suffering two convulsions in 1935, according to the witness, the seizures became much less frequent and much less severe. Such attacks as he had thereafter always came at night, while assured was in bed. His last attack, which came about a year before his death, was very light, producing neither unconsciousness nor convulsions. At no time was his condition such as to interfere with his studies, or his work as a mechanical drawing teacher in the schools in Dade County.

After her son had been placed on a diet, and given treatment, twenty-two months elapsed without a recurrence of the trouble. During this period the insured had made an extended trip...