Owen v. U.S. Cas. Co.

• Decision Date: 16 November 1931
• Docket Number: 23157.
• Citation: Owen v. U.S. Cas. Co., 4 P.2d 1099, 165 Wash. 251 (Wash. 1931)
• Parties: OWEN v. UNITED STATES CASUALTY CO.
• Court: Washington Supreme Court

4 P.2d 1099

165 Wash. 251

OWEN v. UNITED STATES CASUALTY CO.

No. 23157.

Supreme Court of Washington

November 16, 1931

Department 1.

Appeal from Superior Court, King County; Calvin S. Hall, Judge.

Action by Elizabeth Owen against the United States Casualty Company. A verdict for defendant was set aside and a new trial granted, and defendant appeals.

Affirmed.

Whittemore & Truscott, of Seattle, for appellant.

Fred G Clarke, of Seattle, for respondent.

MITCHELL J.

This action was brought to recover on an accident insurance policy issued to Handel E. Owen, the beneficiary being the plaintiff in the action, alleging that the death of the assured resulted directly and independently of any and all other causes from bodily injuries effected solely through accidental means.

The accident was described in the complaint about as follows That while the assured was standing on the running board of an automobile, attempting to enter the same, it was struck by another automobile, throwing the assured violently to the pavement, causing injuries which immediately and continuously disabled him and caused his death, all within the life of the policy.

The answer denied that the injuries suffered by the assured in any way contributed to his death. The trial resuled in a verdict for the defendant, which upon motion of the plaintiff was set aside and a new trial granted; the order reading as follows: 'Now, therefore, it is ordered that plaintiff's motion for new trial be, and it is hereby granted upon the ground and for the reason that the court is convinced and satisfied from the evidence, that substantial justice has not been done between the parties by the verdict of the jury; and that the evidence by its weight was contrary to the verdict of the jury, to which ruling the defendant excepts and defendant's exceptions is hereby allowed.'

The defendant has appealed from the order.

We have consistently held against disturbing an order of the trial court granting a new trial when he is satisfied that substantial justice has not been done between the parties by the verdict of the jury and that the verdict is against the weight of the evidence. Some of our cases upon that subject are Alberts v. Rasher, Kingman, Herrin, 128 Wash 32, 221 P. 975; Stickney v. Congdon, 140 Wash. 670, 250 P. 32; McKay v. General Accident, Fire & Life Assurance Corporation, Limited (Wash.) 299 P. 987.

On behalf of appellant the rule is not denied, as we understand, but the contention is that there was no substantial evidence introduced in support of the allegation in the complaint that the accidental injuries to the assured caused his death.

The immediate cause of the death of the deceased was a tumor of the brain, evidently of the glioma group shown by an autopsy to have been locaed in front and to the left of the center of the brain, so that the question is whether there was...