Romero v. Volunteer State Life Ins. Co.

• Decision Date: 14 August 1970
• Court: California Court of Appeals Court of Appeals
• Parties: Shirley M. ROMERO, Administratrix of the Estate of Andres Romero, Plaintiff and Respondent, v. The VOLUNTEER STATE LIFE INSURANCE COMPANY, Defendant and Appellant. Civ. 34697.

Page 820

88 Cal.Rptr. 820

10 Cal.App.3d 571

Shirley M. ROMERO, Administratrix of the Estate of Andres Romero, Plaintiff and Respondent, v. The VOLUNTEER STATE LIFE INSURANCE COMPANY, Defendant and Appellant.

Civ. 34697.

Court of Appeal, Second District, Division 1, California.

Aug. 14, 1970.

Schramm, Raddue & See and John W. Warnock, Santa Barbara, for appellant.

Harris, Parke, Barnes & McEwen and Thomas R. Hudson, Santa Barbara, for respondent.

LILLIE, Associate Justice.

Plaintiff's intestate, Andres Romero, met his death in the early morning hours of June 28, 1966, while driving his Thunderbird automobile along U.S. 101 in the City of Santa Barbara. This suit for breach of contract was instituted when defendant company refused to pay the proceeds of a $10,000.00 accidental death life insurance policy issued to the beneficiary thereof (T. J. Bettes Company of California) which, in turn, assigned its interest to decedent's estate. Asserted as a defense by the issuing company were the following provisions in the policy sued on: 'This policy does not cover any loss that shall have occurred either directly or indirectly as a result of: (1) self-destruction or any attempt thereat while sane or insane, or of injuries intentionally inflicted by the insured on himself * * * (6) injuries contracted or sustained by the Insured while committing or attempting to commit an assault or felony * * *.' In a jury trial a verdict was returned in plaintiff's favor; the instant appeal is from the judgment entered on that verdict after the denial of defendant's motion for a new trial.

Two assignments of error are urged: first, the court erroneously refused defendant's offered instruction on the effect of the felony drunk driving statute to the felony exception referred to in (6) Supra, and further erred by giving its own instruction on the same subject matter; and second, it was error to receive in evidence decedent's death certificate since it was not prepared as required by law.

The decedent apparently was alone when the fatal injuries were sustained since no person was found who either witnessed the accident or came upon the scene immediately thereafter. Certain physical facts, however, established the following: At the time in question decedent's car was northbound near the State Street overpass between 2:15 and 2:35 a.m. It did not follow the sweeping curve to the left at that location but continued on in a straight line for approximately 63 feet, leaving the main portion of the highway and crashing into a concrete pillar, positioned several feet from the right edge of the roadway's right shoulder, supporting the overpass. There were no skid marks along the length of the vehicle's trajectory. The vehicle struck the pillar with such force that it ripped apart, wreckage coming to rest across both the northbound lanes. Medical evidence established, and it is not disputed, that death ensued within 60 seconds following the collision of car and concrete, due to extreme internal injuries including the severing of the aorta. While the maximum speed limit at the point of the accident was 65 miles per hour, there was varying testimony by certain Highway Patrol officers as to the estimated speed of the vehicle at the moment of collision--from a speed in excess of 80 miles per hour to less than 55 miles per hour, both estimates being based on the physical facts observed.

At 2:30 o'clock, the same morning, Lewis Jones left his home by car to report for work at his place of employment, being assigned to the 3:00 a.m. to 11:00 a.m. shift. Driving in the northbound left lane, he collided with the wreckage of decedent's car which, according to his testimony, he was unable to avoid because there was a large truck in the right lane immediately next to him. Minor injuries requiring medical attention were sustained by Mr. Jones whose car was also damaged.

The body of the deceased was removed to the Haider Mortuary. An embalmer, there employed, first testified that he removed a sample of blood from the body which eventually found its way into a glass vial bearing the inscription 'Andres Romero.' On cross-examination, however, he stated that he could not recall whether he took any blood sample from the body, that there existed no mortuary record of such taking and that he did not know who placed the name 'Andres Romero' on the bottle; he insisted, nevertheless, that customary procedure was followed.

At approximately 2:30 p.m. the coroner's pathologist, Dr. Blanchard, arrived at the mortuary and performed an autopsy. Two hours later he left with the bottle bearing the inscription 'Andres Romero' and subsequently conducted an alcohol blood test of its contents; that test resulted in a finding that the alcohol content of the sample was .228 milligrams by weight per 100 cubic centimeters of blood, considerably above the level at which all persons are deemed to be under the influence of alcohol.

The instruction proposed by defendant, the refusal of which it claims constitutes reversible error, read as follows: 'If you find that ANDRES ROMERO, while under the influence of intoxicating liquor, drove a motor vehicle and while so driving, did any act forbidden by law or neglected any duty imposed by law, which act or neglect proximately caused bodily injuries to Mr. Lewis Jones, then you must find in favor of the defendant and against plaintiff.' Instead, and according to appellant compounding the above error, the court of its own motion gave this instruction: 'To come within the felony exception, the injuries and death of Andres Romero must be related to or a proximate result of a felony then being committed by him, and if you find in this case that Lewis Jones' injury followed the injuries and death of Andres Romero, the necessary element of injury to another is lacking and Andres Romero at that instant was not, and could not have been in the act of committing a felony.'

There are three elements inherent in the felony drunk driving offense: (1) driving on a highway while intoxicated; (2) doing any act forbidden by law; and (3) proximately causing bodily harm to another person. (Veh.Code, § 23101; People v. Smylie, 217 Cal.App.2d 118, 120, 31 Cal.Rptr. 360.) That being so, there must be proof of the concurrence of all such elements before the offense can properly be said to have been committed. While the presence of (2) is not wholly irrelevant to the issues at bar, the parties argue the exist ence, or otherwise, of elements (1) and (3) as applied to the instructions constituting the first assignment of error. As to (1), in our view there is no merit to plaintiff's contention that no foundation was laid for the admission into evidence of the alcohol test analysis. Although there was no positive proof that the blood sample was taken from the remains of the deceased, plaintiff's citation of Nesje v. Metropolitan Coach Lines, 140 Cal.App.2d 807, 810, 295 P.2d 979, is not helpful in light of the fact that there repeated objections, all overruled, were interposed to the competency of the evidence that the blood analyzed was that of the plaintiffs' intestate; here, however, by questions put by her counsel to the pathologist, plaintiff conceded that the blood sample was that of her deceased husband. ¹ The Nesje case was subsequently distinguished in Wagner v. Osborn, 225 Cal.App.2d 36, 42 (fn. 1), 37 Cal.Rptr. 27. After first pointing out that the question of tampering or alteration was one of weight for the trier of fact, the court continued: 'Objections on the foundation of the expert's opinion interposed after evidence of the blood sample was already in the record not only came too late, but failed to specify the particular defect now urged. The objections insofar as admissibility of the evidence is concerned must be held to have been waived.' (p. 44, 37 Cal.Rptr. p. 32.) There can be no question that element (1) of the applicable statute was properly included in the instructions--that offered by defendant and that given by the court on its own motion.

We take up the applicability of element (3), relating to proximate causation, to such instructions. Defendant justifies the instruction in the form proposed by it upon certain determinations made in Barker v. California-Western States Life Ins. Co., 252 Cal.App.2d 768, 61 Cal.Rptr. 595 (hearing denied by Supreme Court). The exclusion clause there was not dissimilar to the one at bar: "Commission of a Felony: The company shall not be liable for any loss to which a contributing cause was the insured's commission or attempt to commit a felony." (p. 770, 61 Cal.Rptr. p. 597.) Appellant's husband, Lester A. Barker, was killed during the early morning hours of the day in question while driving his car under the influence of liquor on the wrong side of a divided highway and colliding head-on with another car whose driver was also killed. While the precise question in this proceeding was not resolved in Barker, other determinations and statements found in that case are urged by defendant to be dispositive here. The trial court having found for defendant insurer on the ground that its insured had died during the commission of a felony (Veh.Code, § 23101), such judgment was affirmed on appeal. In so holding the court held that the conduct proscribed by the above statute came within the meaning of the felony exception in the insurance contract: '* * * there is no ambiguity in this clause, and we conclude that a reasonable person of average intelligence, seeking insurance of the nature provided in the policy, who read the clause would have understood it to mean that the insurance carrier was relieved of liability if the conduct contributing to the...