Richards v. Standard Acc. Ins. Co.

• Citation: 200 P. 1017,58 Utah 622
• Decision Date: 24 September 1921
• Docket Number: 3665
• Court: Supreme Court of Utah
• Parties: RICHARDS v. STANDARD ACC. INS. CO

200 P. 1017

58 Utah 622

RICHARDS v. STANDARD ACC. INS. CO

No. 3665

Supreme Court of Utah

September 24, 1921

Appeal from District Court, Third District, Salt Lake County; W. H Bramel, Judge.

Action by Louise Odell Richards against the Standard Accident Insurance Company. Judgment for plaintiff, and defendant appeals.

AFFIRMED.

M. E Wilson, of Salt Lake City, for appellant.

Dey Hoppaugh & Mark, of Salt Lake City, for respondent.

WEBER J. CORFMAN, C. J., and GIDEON and THURMAN, JJ., FRICK, J., concurring.

OPINION

WEBER, J.

Plaintiff sued defendant, an insurance company, on an accident insurance policy in which she was named as beneficiary. Defendant appeals from the judgment entered upon the jury's verdict for $ 15,000 and interest.

It is charged in the complaint, and admitted in the answer, that on September 17, 1915, an insurance policy was issued by defendant to Joseph Heber Richards, whereby it contracted to insure him in the sum of $ 15,000 against "loss resulting from bodily injuries effected directly, exclusively and independently of all other causes, through accidental means except when intentionally self-inflicted while sane or insane;" that on June 18, 1917, in the state of Arizona, said Richards died as a result of sunstroke then and there suffered by him; that on said day, and while the policy was in force, he visited a mining prospect in Arizona, and while returning was overcome by heat with fatal result; that plaintiff was the wife of said Richards at the time of his death and is the beneficiary named in the policy. The details of the trip and the facts claimed to constitute "accidental means" resulting in the sunstroke were set forth in an amendment to the amended complaint substantially as they appear in the evidence, the substance of which will be hereinafter stated.

The answer admits that Richards died on the desert from the effects of sunstroke, but alleges that the effect of said sunstroke did not constitute "bodily injuries effected directly, exclusively and independently of all other causes, through accidental means," and alleges that the death of the insured was not the result of an accident and that by defendant's policy of insurance it particularly specified and contracted that there was no liability on its part to pay any sum whatever on account of death by disease, that sunstroke was and is a disease and specifically excepted from the contract of insurance; that in that locality and climate there was nothing unusual in the character of the weather for that season of the year, and that the said Richards, of his own volition, and with knowledge of the climate and heat, and knowing that he had to pass over a desert country without water or shade on the road, and under a burning summer sun, undertook to walk to the mining prospect, a distance of about 16 miles, in his usual and ordinary way, and that in all the premises Richards did what he intended to do and not otherwise, and that his death was the natural result of his own acts.

The undisputed evidence, in substance, is: Joseph Heber Richards was a mining engineer and mine promoter. On the 16th day of June, 1917, he and Bert Vincent, with whom he was associated, left Salt Lake City and next day arrived at Las Vegas, Nev., where pursuant to appointment previously made they met D. F. Watson and M. H. Wheeler. These four men procured an automobile and drove from Las Vegas to the Colorado River, a distance of about 32 miles, for the purpose of examining a certain alleged valuable deposit of manganese claimed to have been discovered by Watson, the claim being in Arizona on the other side of the river, and, as Watson represented, 6 miles from the Arizona bank of the river. Arriving at the river on June 17, 1917, the parties constructed a boat and crossed the river into Arizona. Watson, the prospector, had told his companions that he had two horses in Arizona which would come to the river at night for water and they could be caught and the men could ride the horses double from the river to the mining claim. Grain and hay for the horses had been taken in the automobile. At about 5:30 in the evening they crossed the river. They prepared and ate supper and waited for the horses, which, Watson said, "would be down pretty soon." It was then decided to fill their canteens with water and walk a short distance up the "wash" toward the mining claim. Watson said he thought they might "walk up a ways and find the horses." He explained that during the night they would hear the horses going by. They went about three-quarters of a mile and camped. Each slept starked naked on a quilt, the heat being intense. They arose at 3:30 in the morning. The horses had not appeared. At 3:45 a. m. they started to walk to the mining claim, each having a two-quart canteen of water. When they had gone about 6 miles they stopped and had breakfast. It was then about 5:30 or 5:45 a. m. At that time they had consumed but little of their water. Their supply of water would have been ample for the trip to the mining claim and return had the distance been only 6 miles as represented by Watson. They continued walking, the old prospector frequently telling them that they were "nearly there," always speaking of "the next hill" being the place. Wheeler, who tells the story, is a man 27 years of age, with experience in traveling on the desert and in estimating distances. He estimated the distance traveled from the river to the mining claim at 10 miles. They started upon the return trip at about 9:15 a. m. and at 10:30 arrived at the place where they had eaten breakfast, which, Wheeler says, was about 6 miles from the river. Here Wheeler, who had a can of tomatoes, divided it; each taking one-fourth. Wheeler then left with the others what water he had and started in advance of them for the river. When he arrived at the river, at about noon, his mouth was parched; he was feeling hot, and walked into the river to cool off. The thermometer at Watson's tent near the river registered 131 degrees Fahrenheit. The accuracy of the thermometer was questionable according to Wheeler's testimony. In the river Wheeler washed his socks and the temperature was so high that the wet socks, when laid upon a rock, dried almost instantly. He then returned to the desert to look for his companions. About three-quarters of a mile from the river he met Vincent "hollering for water." Vincent informed Wheeler that he had given the others what water he had left and said they had enough to last until 2 o'clock. After taking Vincent to the river, Wheeler returned for Richards and Watson, at about 1:45 p. m. About three-quarters of a mile from the river he found Richards apparently unconscious. He poured water on him and worked his arms, but life was extinct. Wheeler then started into the desert to find Watson. He went 4 or 5 miles, and, upon returning, found Watson about 100 yards from the river. Watson had lain down to die. He was refreshed with water and taken to camp by Wheeler.

Richards, the insured, at the time the trip was undertaken, was a strong, robust, and healthy man 40 years of age.

While the discussion by counsel has assumed a wide range, the material and controlling issues are stated in these two of appellant's sixteen assignments of error:

"First. That the court erred in hearing said cause and in submitting the same to the consideration of the jury and in entering a judgment in favor of the plaintiff and against the defendant for the reason that neither the amended complaint nor the amendment to said amended complaint, taken singly or together, state facts sufficient to constitute a cause of action, said pleadings affirmatively showing on their face that the deceased, Joseph Heber Richards, died from a cause not covered by the terms of the policy of insurance which is the subject of this action.

"Second. That the court erred in not sustaining defendant's motion for a directed verdict in its favor because it is affirmatively shown by the entire record that the insured died from a disease known as sunstroke, and that his death was not the result of or caused by accidental means, and that said death did not result from bodily injuries effected directly, exclusively, and independently of all other causes through accidental means, but that, on the contrary, the entire record shows that the cause of the insured's death was a disease and not an accident, and that the evidence is insufficient in that it shows affirmatively and without dispute that the deceased or insured intentionally and voluntarily subjected himself to an intense heat, calculated to produce sunstroke, with the knowledge and apprehension of the danger which he encountered."

The first question involved is whether the words "bodily injury" in the policy embrace sunstroke; in other words, is sunstroke a bodily injury and included within the policy?

With commendable frankness counsel for defendant says in his brief that sunstroke is included in the policy if it is a bodily injury.

Physicians who testified for defendant declared sunstroke to be a disease, and some of them said that all medical authorities pronounce it to be a disease which physicians usually call "thermic fever," a synonym for sunstroke. The medical books describe sunstroke as a disease and every standard encyclopedia does the same. Describing sunstroke, the Americana says that it is due to exposure to intense external heat.

"Such exposure may be to the direct or indirect rays of the tropical sun or to the excessive heat of an engine room. In either case heat and physical exertion combine to bring about the results. A high degree of humidity of the atmosphere is one of the most important features, since this hinders free evaporation from the body. Sunstroke...