Radius v. Travelers Ins. Co.

• Decision Date: 13 January 1937
• Docket Number: No. 7947.,7947.
• Citation: 87 F.2d 412
• Parties: RADIUS v. TRAVELERS INS. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

87 F.2d 412 (1937)

RADIUS v. TRAVELERS INS. CO.

No. 7947.

Circuit Court of Appeals, Ninth Circuit.

January 13, 1937.

Arnold C. Lackenbach and Adrian A. Kragen, both of San Francisco, Cal., for appellant.

Joseph T. O'Connor and Leo R. Friedman, both of San Francisco, Cal., for appellee.

Before WILBUR, GARRECHT, and MATHEWS, Circuit Judges.

GARRECHT, Circuit Judge.

This action was brought by appellant as beneficiary under a policy of insurance issued by respondent company on the life of Walter A. Radius in the face amount of $7,500. The policy in question provides for the payment of the principal sum of $7,500 if death shall be caused "from bodily injury effected directly and independently of all other causes, through accidental means (suicide, sane or insane, not covered). * * *"

Since the death of Walter A. Radius has been the subject of two other appeals to this court, we refer, for the details so far as material, to the decision of this court in Wells Fargo Bank & Union Trust Co. v. Mutual Life Insurance Co. of New York, 66 F.(2d) 890.

There was also involved in this case the question whether or not Walter A. Radius was an officer or employee of the Barnard Hirsch Company. This question arose after payment by the insurer of $2, 500 to the widow of the deceased, claimed in the cross-complaint to have been made under mistake of fact, in that Walter A. Radius at the date of his death was neither an officer nor employee of the Barnard Hirsch Company; that the payment was made on a group life policy which covered only persons in the employ of said company. In his argument to the jury counsel for the plaintiff conceded that Walter A. Radius was not, at the time of his death, an officer of the Barnard Hirsch Company, but maintained that he was an employee. It appeared that the amount payable under the group policy was $2,500 for an officer or $1,000 for an employee. Judgment on the cross-complaint was in favor of the Insurance Company for $1,500 — in effect finding that the deceased was an employee of the company, but not an officer. In any event, this portion of the judgment is not attacked on appeal and we need not further concern ourselves with it.

The appellant's assignment of errors contains eight assignments, of which four are set out in appellant's brief. The four not pressed in the brief are deemed abandoned and will not be considered. The last of those asserted in the brief, "That the verdict and judgment entered in the above entitled court and cause are, and each of them is, contrary to law" is insufficient to raise any point for consideration of this court, because it brings before us no ruling of the court below to which its attention was called, to which objection was made and upon which it had the opportunity of ruling. See our discussion of a similar point in Mutual Life Ins. Co. of New York v. Wells Fargo Bank & Union Trust Co., 86 F.(2d) 585, decided November 30, 1936.

The appellant claims that the court erred in refusing to give the following requested instructions:

Specification I.

"I further instruct you that the means of death must have been accidental. If you find that in the action which preceded Mr. Radius death, something unforeseen, unexpected or unusual occurred, or that there was some miscalculation, slip or mishap after the starting of the motor by the decedent, then the death of Mr. Radius may be said to have been effected through accidental means within the meaning of the policy."

Specification II.

"I further instruct you that, in deciding whether or not there was some slip or mishap or whether some unexpected or unforeseen circumstance intervened which resulted in the death of Radius, you are permitted to draw logical inferences from the evidence submitted to you, such as physical activity of the decedent resulting in increased respiration and a quicker inhalation of carbon monoxide gas, or such as the belief of the decedent that there was sufficient ventilation in the garage to carry off any fumes of carbon monoxide gas, or such as the vibration of the automobile moving the choke out resulting in the emission of a higher concentration of carbon monoxide gas."

Specification III.

"I further charge you that there is a presumption of law against the theory of suicide, which presumption is to be considered by you in determining whether or not Mr. Radius committed suicide. If you find from the evidence introduced by the plaintiff the physical facts and surrounding circumstances leave in doubt the question whether Walter A. Radius met his death by suicide, then a presumption arises that such death was not self-inflicted, this presumption being founded upon the first law of nature, that of self-preservation."

Before we proceed to compare the requested instructions with those given, it is to be observed that a trial court is not bound to use exactly the same language in an instruction as that requested; neither is it obliged to give any or all of the instructions requested, correct though they may be — all that is required is that the jury be fully and fairly instructed on the law of the questions before it for determination. "A judge is not bound to adopt the categorical language which counsel choose to put into his mouth. Nothing could be more misleading. If the case is fairly put to the jury, it is all that can reasonably be asked." Ayers v. Watson, 137 U.S. 584, 601, 11 S.Ct. 201, 207, 34 L.Ed. 803. See also Goldberg v. U. S. (C.C.A.) 295 F. 447, 450. In Madison v. White, 60 App.D.C. 329, 54 F.(2d) 440, 442, 443, it was said: "* * * if the propositions of law are fairly and justly stated to the jury, and all points of requested instructions covered, the refusal of particular requests, though correct statements in...