New York Life Ins. Co. v. Newport

• Decision Date: 30 November 1939
• Docket Number: 27739.
• Parties: NEW YORK LIFE INS. CO. v. NEWPORT et al.
• Court: Washington Supreme Court

96 P.2d 449

1 Wn.2d 511

NEW YORK LIFE INS. CO. v. NEWPORT et al.

No. 27739.

Supreme Court of Washington

November 30, 1939

Department 2.

Action by the New York Life Insurance Company against Richard Newport, a minor, and another, under the Declaratory Judgment Act, to have the plaintiff's rights and liabilities determined under a life policy. From an order granting a new trial to defendants, the plaintiff appeals.

Order reversed, with instructions to enter judgment on verdict for plaintiff.

Appeal from Superior Court, Spokane County; R. M. Webster, judge.

Graves Kizer & Graves and J. W. Greenough, all of Spokane, for appellant.

Thos A. E. Lally and John J. Lally, both of Spokane, for respondents.

JEFFERS Justice.

This is an appeal by plaintiff, New York Life Insurance Company, from an order granting a new trial to defendants, on the specific ground of failure to give defendants' requested instructions Nos. 6 and 7.

Plaintiff brought this action under the declaratory judgment act (Rem.Rev.Stat. (Supp.) § 784-1 et seq.), to have its rights and liabilities determined under a certain life insurance policy issued by plaintiff upon the life of Paul E. Newport Jr. Defendants demanded a jury, claiming they had a right so to do under Rem.Rev.Stat. (Supp.) § 784-9, there being an issue of fact to be determined. The procedure in this case was not questioned.

It is undisputed that plaintiff, on February 27, 1933, issued an insurance policy on the life of Paul E. Newport, Jr., in consideration of the annual premium of $36.88, which premium covered a period of one year, from February 27, 1933, to February 27, 1934; that by the terms of this policy, plaintiff agreed to pay, upon the death of Paul E. Newport, Jr., who was then approximately eighteen years of age, the sum of two thousand dollars, to his brother, Richard Newport, a minor, who was then about seven years of age. The policy contained the following provision: ' Self-Destruction.--In event of self-destruction during the first two insurance years, whether the insured be sane or insane, the insurance under this policy shall be a sum equal to the premiums thereon which have been paid to and received by the company and no more.'

The policy also contained the usual two year non-contestable clause required to be a part of all such policies issued in this state.

It appears that Paul E. Newport, Jr., died on or about January 21, 1934, and prior to the expiration of the first two insurance years of the policy; that on the death of insured, and after an investigation of the facts surrounding such death, plaintiff denied all liability to pay to the beneficiary the sum of two thousand dollars, and so notified Paul E. Newport, Sr., father of the minor beneficiary, but plaintiff did admit liability for, and offered to pay to the father of the beneficiary, the sum of $36.88, the amount of the premiums paid, in full settlement of all its liability under the policy; that plaintiff, at all times after making such investigation, claimed insured's death was deliberately self-inflicted, and that plaintiff was therefore not liable under the policy, except as herein stated, while defendants alleged and at all times claimed insured's death was not self-inflicted, and that plaintiff was liable for the full amount of the policy.

There was considerable testimony introduced relative to the general habits, activities, mental and physical condition of insured, and it must be admitted that he was an exceptional young man in many respects. The testimony shows that in spite of a physical handicap of one leg being about an inch and a half shorter than the other, resulting apparently from an early sickness, he excelled in many outdoor sports, and had taken a great interest in the boy scout work. There was testimony to the effect that in 1930, two operations were performed on insured, in an endeavor to correct this physical defect. There was testimony, which the jury were entitled to believe, that these operations were not as successful as hoped for, although the defect was helped to some extent; that after these operations, there was soreness and pain in the foot, and that the boy began to be troubled with insomnia; that visits were made to doctors in regard to this condition of nervousness, and that a nerve specialist was recommended; that he was withdrawn from high school at various times, and sent to the country. There was some testimony that the boy had developed some sort of a complex, and had threatened to take his life.

On January 21, 1934, insured took his mother's coupe, and apparently drove to a small clearing in the woods just south of the Spokane city limits, where his body was found the next day, lying on the ground about twenty-five feet from the car. A few feet from the head, and backward from it, was a 410 short-barreled shotgun, which the insured had purchased a few days Before , without the knowledge of his family or friends. At the time the boy was found, all of his clothing was in place, his shirt and undershirt being tucked in his trousers, and his outer garments being in place. The clothing was not penetrated in any way, and there was no blood on the clothing, except in the immediate area of the wound. It was evident the gun must have been held practically against the body, as the wad from the shell was found in the heart. Plaintiff demonstrated to the jury the manner in which it contended the act could have been committed, while counsel for defendants claimed and attempted to demonstrate the impossibility of self-destruction. There was testimony also that about noon of the day of insured's death, he was seen, with a stranger whom the witnesses did not recognize, driving his mother's car on Grand avenue, toward and about five miles from the place where the body was found.

The jury returned a unanimous verdict for plaintiff, and further found that defendants were entitled to recover $36.88, as returned premium, and interest thereon from date of proof of death.

Defendants moved for judgment notwithstanding the verdict, and in the alternative for a new trial, upon the last four statutory grounds permitted under Rem.Rev.Stat. § 399. The court denied the motion for judgment notwithstanding the verdict, and granted defendants' motion for new trial, as shown in the order, for the sole reason that the court erred in failing to give defendants' proposed instructions Nos. 6 and 7. Plaintiff has appealed, making the following assignments of error: (1) In entering the order granting a new trial; (2) in holding that it failed to give defendants' amended instruction No. 6 and proposed instruction No. 7; (3) in holding that it failed to give defendants' amended instruction No. 6 and proposed instruction No. 7, and that such failure was error; (4) in failing and refusing to enter judgment for plaintiff upon the verdict of the jury.

While the trial court, as shown by its memorandum opinion, did not feel that, under the instructions as given, the respondents were limited in their argument to the jury on their theory of the case, which was that the shot may have been fired by some person other than deceased, either accidentally or intentionally, or that the jury were, in their deliberations, precluded from giving consideration to such theory, still the court seemed to feel that because of its failure to give the proposed instructions, the theory of respondents may not have received the consideration of the jury to which it was entitled.

The trial court granted the new trial on one specific ground, but we have consistently held, since our decision in Rochester v. Seattle etc. Ry. Co., 75 Wash. 559, 135 P. 209, that, although a motion for new trial be granted on a specific ground, where there is an appeal from such order by the adverse party, the one in whose favor the order was granted may, on such appeal, urge in support of...