Pierce v. Pacific Mut. Life Ins. Co. of Cal., 28036.

• Decision Date: 17 January 1941
• Docket Number: 28036.
• Citation: 109 P.2d 322,7 Wn.2d 151
• Parties: PIERCE v. PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA.
• Court: Washington Supreme Court

109 P.2d 322

7 Wn.2d 151

PIERCE v. PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA.

No. 28036.

Supreme Court of Washington

January 17, 1941

Department 1.

Action by Ralph S. Pierce against the Pacific Mutual Life Insurance Company of California, on accident policies. After a verdict for plaintiff, defendant's motion for judgment notwithstanding the verdict was granted, and from a judgment of dismissal, plaintiff appeals.

Reversed with direction to reinstate the verdict.

ROBINSON C.J., dissenting.

Appeal from Superior Court, King County; Robert M. Jones, judge.

Gordon H. Sweany and Shank, Belt, Rode & Cook, all of Seattle, for appellant.

Padden & Moriarty, of Seattle, for respondent.

STEINERT Justice.

Plaintiff brought suit to recover upon two accident insurance policies. Trial to a jury resulted in a verdict in plaintiff's favor. Defendant interposed motions for judgment notwithstanding the verdict and for a new trial. The court granted the former motion and denied the latter. Judgment of dismissal was accordingly entered, and plaintiff appealed.

The policies in question were issued by respondent in 1926 and 1927, respectively, and, in addition to their principal sums provided for a weekly payment of $50 as insurance and indemnity to appellant

'Against Bodily Injury sustained * * * solely through accidental means * * * and resulting directly, independently and exclusively of all other causes, in----

'(A) Immediate and continuous total disability that prevents the Insured [appellant] from performing any and every kind of duty pertaining to his occupation, * * *.'

The 'bodily injury' relied upon for recovery in this instance was a cerebral hemorrhage sustained by appellant, and alleged by him to have been caused by fright, mental shock, and severe physical strain induced by the sight of what, in the mind of appellant at the time, was an immediately imminent automobile collision involving himself. The answer denied liability under the terms of the policy.

The general question presented upon the appeal is whether or not the evidence was sufficient to sustain the verdict. The specific questions raised thereunder are: (1) whether the 'injury' occurred at the time, and in consequence, of the alleged fright and strain, or whether, on the contrary the injury occurred some time prior to such fright and strain; (2) whether or not fright, or mental shock, unaccompanied by physical impact, is sufficient to constitute 'accidental means' within the purport of that term as used in the policies; and (3) whether or not the evidence was sufficient to warrant a finding that the fright or shock was the sole, proximate cause of the 'injury,' resulting 'directly, independently and exclusively of all other causes' in appellant's disability.

In passing upon a motion for judgment notwithstanding the verdict, we must not only accept as true all competent evidence in the record in favor of the party for whom the verdict was rendered, but must also give him the benefit of every favorable inference which reasonably may be drawn from such evidence. Vercruysse v. Cascade Laundry Co., 193 Wash. 184, 74 P.2d 920; Beck v. Dye, 200 Wash. 1, 92 P.2d 1113; Pyle v. Wilbert, 2 Wash.2d 429, 98 P.2d 664; Wiggins v. North Coast Transportation Co., 2 Wash.2d 446, 98 P.2d 675.

The undisputed facts are as follows: At the time involved in this action, appellant was fifty-nine years of age and had been actively engaged in the practice of law for thirty-five years. His home was located near Medina, about five miles south of Kirkland, on the east side of Lake Washington, opposite Seattle. The road between Medina and Kirkland ran in a winding course, and made many right-angle turns. In passing through Kirkland, the road executed two such turns. Appellant had customarily, for many years, driven his automobile over this route to and from his office in Seattle.

On the morning of December 6, 1938, appellant arose as usual, apparently in the same state of health as that which he had enjoyed for the past several years, and, after breakfast, at about 8 o'clock started for Seattle in his automobile. He drove over the usual route to, and partly through, Kirkland without experiencing any difficulty. Driving at the rate of approximately twenty miles per hour, he approached an obstructed corner located at the seconf of the right-angle turns above mentioned, in Kirkland. Following the turn he had proceeded about one-third of the way around the corner, or about twenty or thirty feet into the intersection, when he suddenly saw two cars approaching him from the opposite direction, and about twenty or thirty feet ahead of him. One of the approaching cars was on the wrong side of the road, that is, it was partly on appellant's side of the highway. The width of the highway was about twenty feet. Appellant became badly frightened, thinking that under the circumstances he would be unable to pass abreast of the approaching cars, and that a collision was therefore inevitable. In an endeavor to avoid a collision, appellant immediately 'slammed on the brakes,' and his car proceeded at an angle, toward the opposite side of the street, and then, within fifteen or twenty feet, and while still in gear, came to a stop. Immediately upon seeing the situation ahead of him, appellant became aware of 'feeling a weakness in his right arm,' and by the time that his car came to a stop he had lost consciousness. There was no collision, however, and appellant sustained no external injuries. The record does not disclose whether the oncoming cars passed in front, or in the rear, of appellant's car. Appellant had no knowledge upon that subject, and no witness to the event was available. According to appellant's testimony, the whole occurrence took place in a 'split-second.'

After an uncertain period of time, appellant regained consciousness, started his engine, proceeded to his right side of the highway, and drove on to Seattle, arriving at his office about an hour late. His recollection of the events occurring after he had regained consciousness and during the remainder of the trip was vague. He had a faint recollection of having run off the side of the road somewhere along the way between Kirkland and Seattle, and recalled that he had stopped twice in obedience to stop signals. He arrived at his office, however, without further mishap. He described his condition at the time of his arrival there as 'woozy, decidedly woozy and hazy.' On appellant's arrival at his office, some of his business associates attempted to confer with him, and observed that he had difficulty in speaking, that his face was distorted, and that he was obviously ill. He was thereupon immediately taken to a physician, who diagnosed his condition to be that of a cerebral hemorrhage, or stroke. At that time, the right side of appellant's face and also his right leg were paralyzed, and his right arm was partially paralyzed. Appellant was at once taken to a hospital, where he remained for approximately ten days. He was then removed to his home, where he was confined to his bed until April, 1939. Since then, his condition has improved to some extent. At the time of the trial, his face had regained its normal appearance, and he was able to walk about, although his arm and his leg were still partially paralyzed. He could not write; at times he could not control his voice; and he had been continuously unable to perform any of the duties of a lawyer.

In connection with, but antedating, the events just narrated, some other facts, which are also undisputed, should be stated.

For ten or fifteen years prior to the above occurrence, appellant had been afflicted with arteriosclerosis and hypertension. In November, 1932, he suffered a slight cerebral hemorrhage, and was hospitalized for a period of six days. He recovered from that attack, however, to the extent that he was able to resume his usual work as a lawyer, although he continued to have arteriosclerosis and high blood pressure. He was accordingly advised by his physician to avoid stress and strain, inasmuch as a person in his condition is more susceptible to cerebral hemorrhage than is a normally healthy person.

Since that time, however, and for several years just prior to December, 1938, appellant had apparently been in good health, and had not been aware of any effect of his arteriosclerosis other than that he had experienced some trouble, at times, with his legs. He had been able to attend to all of his duties in connection with his profession. Between September and December of 1938, he had conducted four trials in the superior court, and had argued one case Before the Supreme Court, besides attending to all the routine duties of his office. One of those four trials, lasting several days, he had conducted the week Before the unfortunate occurrence. On the Thursday preceding his stroke, he had driven to Montesano, where, on the following day, he argued a legal matter. Returning to Seattle by automobile, he had gone to his office on Saturday as usual. After a quiet day at home on Sunday, he resumed his work on the following day, Monday, which was the day Before the fateful trip.

It is conceded that among the recognized causes of cerebral hemorrhages are excitement, fright, and sudden physical exertion, and other mental, emotional, or physical activity which has the effect of raising a person's blood pressure. It is also conceded that a person afflicted with arteriosclerosis or hypertension is more susceptible to cerebral hemorrhage than is a person not so afflicted.

There is no dispute in this case that appellant sustained a cerebral hemorrhage on December 6, 1938, or that the events above narrated actually occurred. The principal dispute presented by the briefs of c...